Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC366131, Elihu M. Berle, Judge.
Melvin Teitelbaum in Pro. Per., for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis, George T. McDonnell and Marissa M. Prayongratana for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Melvin Teitelbaum, appeals from an order dismissing his complaint against seven Florida defendants for malicious prosecution. Plaintiff’s malicious prosecution claim arose out of a complaint which had been filed against him in the federal court in Florida. (Pier Sixty Six & Rahn Bahia Mar LLC v. Teitelbaum, United States District Court, Southern District of Florida, case No. 0660514CIV.) The seven defendants include: two Florida limited liability companies (230117th St. LLC and Rahn Bahia Mar LLC); a Florida law firm which represented the companies (Lydecker, Lee, Behar, Berga & De Zayas, LLC); and four individuals, who are employed by the law firm (Richard Lydecker, Laura Revak, Deborah Lee-Serafini, and Noel Espinosa erroneously sued as Neil Espinosa). In this case, the trial court dismissed the current action for failure to prosecute after granting defendants’ motion to quash service of summons for lack of personal jurisdiction. Plaintiff contends defendants had sufficient contacts with California to satisfy the constitutional requirements for general or specific jurisdiction. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477; Helicopteros Nacionales de Columbia v. Hall (1984) 466 U.S. 408, 414-415; World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 291; Pavlovich v. Superior Court. (2002) 29 Cal.4th 262, 268-269.) We affirm the order dismissing the complaint because the trial court did not err in quashing service of summons for lack of personal jurisdiction.
II. BACKGROUND
Plaintiff filed his malicious prosecution complaint on February 9, 2007, which contained causes of action for general negligence (first) and intentional tort (second). The basis of the complaint was that plaintiff had allegedly been wrongfully sued in a Florida court. On May 3, 2007, the seven Florida defendants moved to quash service of summons for lack of personal jurisdiction. Defendants argued service should be quashed because they: are not domiciled in California; do not conduct business in California; were not served with summons while physically present in California; and do not have sufficient “minimum contacts” with California to satisfy constitutional personal jurisdiction requisites.
In support of the motion to quash, defendants filed a number of declarations. Mr. Lydecker, declared: he is a partner in the law firm which is also a named defendant; he is licensed to practice law in Florida; he has never been licensed to practice law in California; he has resided in the State of Florida for eight years; he has never been domiciled in California; he has never conducted business in California; neither he nor the law firm consented to California jurisdiction with plaintiff; the law firm is a Florida limited liability company with its principal place of business in Florida; the law firm only has offices in South Florida; the individuals named in the malicious prosecution action are all employed by the law firm as partners or associates, none of whom are licensed to practice law in California; and the acts that precipitated the malicious prosecution complaint occurred in Florida. Mr. Lydecker declared that he and the law firm were served with summons and complaint by certified mail on April 3, 2007 at its office address in Miami, Florida.
Ms. Lee Serafini, declared that she is a partner at the law firm. Ms. Serafini is a citizen of Florida where she has resided for 23 years. She has never been domiciled in California. Ms. Serafini is licensed to practice in Florida. But she had no license to practice law in California. She has never conducted business in California. She did not contractually consent to California jurisdiction with plaintiff. She was not personally served in California but was served by certified mail at her office in Miami, Florida on April 3, 2007.
Ms. Revak, declared that she is an associate at the law firm. She is a citizen of the State of Florida. For the past seven years, she has resided in Florida. She has never lived in California. Ms. Revak is licensed to practice law in Florida. But she was not licensed to practice law in California. She has not conducted business in California. Ms. Revak denied that she ever contractually consented to California jurisdiction. She believed that the acts giving rise to the malicious prosecution action occurred in Florida. She was served with summons and complaint by certified mail on April 3, 2007 at her Miami office. She was not served with the summons and complaint while physically present in California.
Mr. Espinosa, declared that he is an associate at the law firm. A Florida citizen for the past 23 years, he has resided there. He has never lived in California. Mr. Espinosa is licensed to practice law in Florida. Mr. Espinosa was not licensed to practice law in California. He has not conducted business in California. Mr. Espinosa denied that he ever contractually consented to California jurisdiction. He believed that the acts giving rise to the malicious prosecution action occurred in Florida. He was served with summons and complaint by certified mail on April 3, 2007, at his Miami office. He was not served with a summons and complaint while physically present in California.
Robert Rubenstein filed two declarations, one on behalf of defendant, Rahn Bahia Mar LLC, and the other on behalf of defendant, 2301 SE 17th St. LLC. Mr. Rubenstein declared that he is the Assistant General Counsel of both named limited liability companies. Mr. Rubenstein stated they are Delaware limited liability companies having their principal place of business in Florida. Mr. Rubenstein further declared that neither company has ever: had a principal place of business anywhere except Florida; registered to do business in California; or conducted business in California. According to Mr. Rubenstein, Rahn Bahia Mar LLC entered into two written contracts with plaintiff from the end of December 2005 to the beginning of January 2006. Likewise, 2301 SE 17th St. LLC entered into two written contracts with plaintiff from the end of December 2005 to the beginning of January 2006. The written contracts had a forum selection clause in which plaintiff agreed to consent to jurisdiction in a Florida court. Mr. Rubenstein stated neither entity had ever consented to jurisdiction in California with plaintiff. The two companies initiated lawsuits against plaintiff in a Florida federal court as a result of plaintiff’s alleged contract breaches. The two companies were served with summons and complaint by certified mail on April 2, 2007 at their principal places of business in Boca Raton, Florida. The two companies were not served by authorized agent for service of process while physically present in California.
Plaintiff opposed the motion to quash service of summons on the grounds that defendants availed themselves of California jurisdiction by virtue of their contacts with this state. Also, plaintiff asserts California had jurisdiction by virtue of defendants’ intentional acts purposefully, intentionally and wrongfully directed at plaintiff. Citing Pavlovich v. Superior Court, supra, 29 Cal.4th at page 286 [dissenting opn. of Baxter, J.], plaintiff argued California had jurisdiction because defendant’s alleged misconduct was intended to cause effects in this state; i.e., filing a Florida lawsuit against plaintiff, a California attorney. Plaintiff filed his declaration and a first amended complaint. Plaintiff declared that, over the last five years, he had conversations with “each of the hotels named as defendants” with regard to booking the same event in April in each of those years. Defendants always informed plaintiff that they already had other reservations that would not allow adequate space for the activity plaintiff was seeking to book. Plaintiff was always told the names of the other groups that had booked space. Plaintiff recalled that Rahn Bahia Mar LLC was a national card playing club with locations all over the country including California. Both of the two limited liability companies sent regular mailings throughout the year. The mail was addressed to plaintiff’s attention in California as the vice-president for marketing for Baruch Litvin Foundation (the foundations) or one or several other group booking entities he represented. Plaintiff declared: “That in the limited conversations [plaintiff] had with Mr. Lydecker and Ms. Revak they each boasted of the California clients they have. I do not know in which courts, California or Florida or elsewhere or even just transactionally that they may have represented them.”
Plaintiff attached an unverified first amended complaint which purportedly raised more specific conduct by defendants supporting California jurisdiction. The unverified first amended complaint alleged, in November 2005, plaintiff negotiated and executed contracts on behalf of the foundation with the two limited liability companies which are Florida hotels. The contracts were for group bookings and events at each hotel which were to occur in April 2006. The contracts each contained a clause in which the hotels waived any claims for individual liability. It was alleged that defendants knew: plaintiff was an attorney licensed to practice in California; he was counsel for the foundation and manager of events for the group; and the hotels had waived any personal liability claims against plaintiff. Defendants filed suit against the foundation and against plaintiff individually. The unverified first amended complaint further alleged: the foundation learned of the hotels from advertisements placed in national magazines and from the Internet and direct promotional mailings received directly from the hotels; the foundation and the hotels have had numerous discussions about the events during the past 10 years; the hotels regularly solicited group and individual business throughout the United States including California; hotel employees regularly attend sales and marketing meetings and conferences throughout the United States including California; and the law firm and lawyers named as defendants have a large portfolio of clients which required them to regularly conduct business throughout the United States including California. Plaintiff also noted that service on Mr. Espinoza was incorrectly addressed, and, therefore, not accepted.
In reply, defendants reiterated arguments that they had no minimum contacts with California. Defendants also argued: plaintiff admitted defective service on Mr. Espinoza; plaintiff failed to satisfy his burden of proving that defendants had sufficient contacts with California to warrant the exercise of jurisdiction; the fact defendants sued plaintiff, a California resident, in Florida did not establish jurisdiction; and it would be unreasonable to subject the law firm and its attorneys to personal jurisdiction merely because they sued a California resident in a Florida court. Accompanying plaintiffs’ reply was the declaration of Susan Silverio, the Associate Director of Sales of Hyatt Regency Pier Sixty-Six Resort. In November 2005, plaintiff called Ms. Silverio at her offices in Florida to inquire about a group rate for a Passover vacation package at Rahn Bahia Mar LLC and the Hyatt Regency Pier Sixty-Six Resort both located in Fort Lauderdale. Ms. Silverio assists hotel affiliates including Rahn Bahia Mar LLC. Ms. Silverio and plaintiff negotiated a contract for the allocation of hotel rooms at Rahn Bahia Mar LLC and the Hyatt Regency Pier Sixty-Six Resort for plaintiff’s Passover program. The negotiations were by telephone and through e-mail correspondence. Plaintiff visited the resorts in Florida for a site visit before executing the contracts for the hotel. The contracts were signed by facsimile for the Hyatt Regency Pier Sixty-Six Resort on December 29, 2005, and for Rahn Bahia Mar LLC on January 6, 2006. Ms. Serafini declared that she was only licensed to practice law in Florida. Ms. Serafini denied that the law firm “conducted business” in California. On May 8, 2007, the district court in the Florida action granted plaintiff’s motion to arbitrate the underlying lawsuit in his individual capacity. Ms. Revak also filed a reply declaration in which she restated she had no license to practice law in California. She also denied that she had otherwise conducted business in California. Ms. Revak declared: she never had any clients or business in the State of California; she never sought to obtain any clients or engage in any business transactions in California; she never had a conversation with plaintiff about any clients or business conducted in California by her or the law firm; she never boasted of California clients; and the only conversations she had with plaintiff related to issues concerning the Florida action.
On May 25, 2007, the trial court: granted defendants’ motion to quash; found plaintiff’s declaration did not state facts establishing the minimum contacts required to exercise personal jurisdiction against defendants in California; and ruled plaintiff did not meet his burden of proof by a preponderance of the evidence to support either general or specific jurisdiction against defendants. On June 8, 2007, the trial court dismissed the lawsuit as to defendants. On August 14, 2007, the trial court dismissed the action in its entirety for failure to prosecute. This timely appeal followed.
III. DISCUSSION
Code of Civil Procedure section 410.10 provides, “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (See Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 268.) Personal jurisdiction over a nonresident may be either general or specific. (Snowney v. Harrah’s Entertainment, Inc. (2005)35 Cal.4th 1054,1062; Pavlovich v. Superior Court, supra, 29 Cal.4th at pp. 268-269; Von’s Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) General jurisdiction exists if the defendant’s contacts in the forum state are substantial, continuous, and systematic. (Helicopteros Nacionales de Columbia v. Hall, supra, 466 U.S. at pp. 414-415; Perkins v. Benguet Consol. Mining Co. (1952) 342 U.S. 437, 446; Von’s Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 445.) Additionally, a court may exercise specific jurisdiction over a nonresident defendant but only if: the defendant has purposefully availed himself or herself of forum benefits; the controversy is related to or arises out of the defendant’s contacts with the forum; and the assertion of personal jurisdiction would comport with fair play and substantial justice. (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1062; Pavlovich v. Superior Court, supra, 29 Cal.4th at pp. 268-269; Von’s Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 446.) We review the trial court’s factual finding for substantial evidence. (Center Point Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1117; Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Any conflicts in the evidentiary showing made by the parties are resolved in favor of the trial court’s order quashing service of the summons and complaints. (Center Point Energy, Inc. v. Superior Court, supra, 157 Cal.App.4th at pp. 1117-1118; Aquila, Inc. v. Superior Court, supra, 148 Cal.App.4th at p. 568.)
We conclude that the defendants’ activities in California are not so substantial, systematic, or wide-ranging to justify general jurisdiction over them to adjudicate all matters regardless of the relevance to plaintiff’s cause of action. (Von’s Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at pp. 445-446; Cornelison v. Chaney (1976) 16 Cal.3d 143, 147.) Thus, there is no basis for general jurisdiction. Furthermore, plaintiff produced no evidence that specific jurisdiction exists because defendants had purposefully availed themselves of forum benefits. In Von’s Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at page 446, our Supreme Court explained the standard for making such a determination as follows: “The United States Supreme Court has described the forum contacts necessary to establish specific jurisdiction as involving variously a nonresident who has ‘“purposefully directed’ his or her activities at forum residents [citation], or who has ‘purposefully derived benefit’ from forum activities [citation], or ‘purposefully avail[ed] himself or herself] of the privilege of conducting activities within the forum States, thus invoking the benefits and protections of its laws.”’ [Citation.] The court also has referred to the to the requisite forum contact as involving a nonresident defendant who ‘“deliberately” has engaged in significant activities with a State [citation] or has created “continuing obligations” between himself and residents of the forum [citation]’ [citation], concluding that is such cases the defendant ‘manifestly has availed himself of the privilege of conducting business [in the forum], and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.’ [Citation.]”
In the trial court defendants offered evidence establishing they had no contacts with California. The hotels presented evidence their relationship with California consisted of making a contract with the foundation which was represented by plaintiff. The only evidence of a contact by the attorneys with California is that they filed a lawsuit on behalf of their Florida clients in that state against plaintiff who allegedly breached a contract. The contract involved a Florida event. In the trial court, plaintiff produced no evidence that defendants purposefully derived benefits from California related conduct. Rather, plaintiff’s evidence consisted of: his declaration that he received mailers from the hotels which are sent around the world including California; the hotels had Web sites on the Internet; and he had conversations with attorneys on unspecified dates that the law firm had California clients. The trial court concluded that plaintiff’s evidence did not establish “minimum contacts” with California. Plaintiff has not argued that the trial court’s conclusion is erroneous. Indeed, plaintiff has not relied on any of this evidence as a basis for reversing the dismissal order.
Plaintiff claims that the trial court ignored allegations in the unverified first amended complaint that employees of the two hotels regularly attend marketing and sales meetings throughout the United States including California in order to solicit business in Florida. Plaintiff’s allegations in the unverified complaint are insufficient to meet his evidentiary burden to prove defendants had minimum contacts with California. (See DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1091 [“unverified complaint has no evidentiary value in meeting the plaintiff’s burden of proving minimum contacts”]; accord Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th 423, 434.)
As an alternative argument, plaintiff relies on language from Associate Justice Marvin R. Baxter’s dissenting opinion Pavlovich v. Superior Court, supra, 29 Cal.4th at page 286: “California has similarly assumed that, because of this state’s ‘“natural interest in the effects of an act within its territory, even though the act itself was done elsewhere”’ [citations], one whose out-of-state act was intended to cause effects here may be sued in this state for the act just as if it had occurred here [citations.]” However, the aforementioned language is not the conclusion of the Supreme Court majority but only the three dissenters. (Id. at p. 299.)
The majority in Pavlovich discussed “the effects test” as articulated by the United States Supreme Court in Calder v. Jones (1984) 465 U.S. 783, 788-789. Calder was a defamation action filed by an actor against the National Enquirer, a Florida reporter, and an editor for publishing an article about her. (Ibid.) Calder concluded that California could exercise jurisdiction over the individual defendants because of “the effects” of the conduct in writing the article which caused harm to the actor who was working and living in California. (Ibid.) In Pavlovich, the majority then reviewed a number of cases decided by other jurisdictions after Calder and rejected the argument that the location of where the injury occurred could always support jurisdiction in an intentional tort case. (Pavlovich v. Superior Court, supra, 29 Cal.4th at pp. 269-272.) Rather, Pavlovich concluded that the mere location of harm in California is insufficient but exercise of jurisdiction requires “additional evidence of express aiming or intentional targeting” at this state in order for jurisdiction to exist here. (Id. at p. 273.) Plaintiff contends that he was served in California with the summons in the Florida lawsuit. However, plaintiff presented no additional evidence that any defendant expressly aimed at or targeted plaintiff other than to file a lawsuit against him for contract breaches related to an event which was scheduled to occur at a hotel in Florida. Moreover, there is no evidence that any defendant aimed at or targeted any person in California except plaintiff. There is no evidence that the law firm or any of its attorneys had contact with California other than filing this lawsuit. None of the defendant attorneys have licenses to practice in this state. There was no evidence that they had clients in this state. Each attorney filed a declaration stating they were admitted to practice in Florida where they each resided.
While there was evidence that the hotels had a Web site, there is no evidence that this transaction occurred over the Internet. Rather, the only evidence was that plaintiff contacted the hotels by telephone and that he visited Florida before executing the contracts by facsimile. In Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at page 1063 our Supreme Court articulated a standard for determining whether an Internet advertisement could establish purposeful availment. Snowney concluded that a sliding scale analysis should be applied. (Ibid; see Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 274.) The sliding scale analysis is as follows: “‘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.’” (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1063 quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa. 1997) 952 F.Supp. 1119, 1124; accord Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 274.) Plaintiff has not argued on appeal that there is any evidentiary basis for application of Internet contacts to establish purposeful availment.
IV. DISPOSITION
The orders quashing service of summons is affirmed. Defendants, Richard Lydecker, Laura Revak, Deborah Lee-Serafini, Noel Espinosa, Lydecker, Lee, Behar, Berga & DeZayas, LLC, 230117th St., LLC, and Rahn Bahia Mar LLC, are awarded their costs on appeal from plaintiff, Melvin Teitelbaum.
We concur: ARMSTRONG, J. MOSK, J.