Brem v. The Weinstein Co.











Filed 4/2/12 Brem v. The Weinstein Co. CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
ONE




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BARBARA BREM, Plaintiff and Appellant, v. THE WEINSTEIN COMPANY et al., Defendants and Respondents.

B227245 (Los Angeles County Super. Ct. No. EC048594)

APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. David S. Milton, Judge. Affirmed.

Thon Beck
Vanni Callahan & Powell, Daniel P. Powel; Esner, Chang & Boyer, Stuart
B. Esner and Andrew N. Chang for Plaintiff and Appellant.

Squire, Sanders & Dempsey (US),
Adam R. Fox, Helen H. Yang and Adrienne R. Salerno for Defendants and
Respondents.





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In this proceeding, the
trial court concluded it lacked personal jurisdiction over foreign nonresident
defendant Bridgestone Cycle Co., Ltd. (Bridgestone Japan) and on two successive
occasions granted defendant’s motions to quash service of summons. Plaintiff appeals from the second order. In that order, the trial court found Bridgestone
Japan (1) had not been served
with the summons and (2) lacked minimum contacts with California. Plaintiff disputes only the second
finding. Although plaintiff’s failure to
dispute the first finding dooms her appeal, we nevertheless reach the minimum
contacts issue, concluding plaintiff failed to show that Bridgestone Japan’s
contacts with California subject it to
jurisdiction. We thus affirm the trial
court’s order.

BACKGROUND

Bridgestone Japan manufactures bicycles in
Ageo, a city in the Saitama prefecture, Japan.href="#_ftn1" name="_ftnref1" title="">[1] Plaintiff Barbara Brem alleges she was
severely injured in 2007 when she was thrown from a Bridgestone bicycle
manufactured by Bridgestone Japan. In 2008, plaintiff filed a form complaint
against several defendants, alleging negligence and product liability. The complaint alleged no facts other than
that defendants designed, manufactured and sold the bicycle to the public and
breached implied warranties. In 2009,
plaintiff substituted Bridgestone Japan for defendant Doe 2.

Plaintiff initially attempted indirect service on
Bridgestone Japan by serving two U.S.
Bridgestone entities on the theory that they were defendant’s agents or general
managers. (See Yamaha Motor Co. v. Superior Court (2009) 174 Cal.App.4th
264.) Bridgestone Japan specially
appeared by motion to quash service of process pursuant to Code of Civil
Procedure section 418.10, contending it lacked minimum contacts with the forum
state and service was defective because the U.S. Bridgestone entities were not
its agents or managers.href="#_ftn2"
name="_ftnref2" title="">[2] Yoshitaka Tamura, the manager of Bridgestone
Japan’s quality assurance division and an employee since 1973, declared
Bridgestone Japan, a wholly owned subsidiary of Bridgestone Corporation, “has”
no offices, business, property interests or agent for service of process in
California, “is” not licensed to do business and does no business of any kind
in California, and “has not” designed, manufactured or sold any good or product
in California. Bridgestone Japan never sold a bicycle in California. If it made plaintiff’s bicycle at all, it
would have been made and sold exclusively in Japan, and defendant would have
had no involvement in any subsequent sale or redistribution in the United States.

Plaintiff opposed the motion, contending Bridgestone Japan sold the bicycle in California in 1992 through its wholly
owned subsidiary, Bridgestone Cycle (USA) (Bridgestone USA), a California-based
bicycle distributor. Plaintiff argued
that because the Tamura declaration was phrased in the present tense, it
offered no proof that Bridgestone Japan lacked minimum contacts with California in 1992.

Plaintiff’s opposition was supported by a photograph
of a bicycle that bore a Bridgestone sticker on the frame. It was also supported by documents purporting
to be: (1) a 1992 Bridgestone bicycle catalog; (2) a page from a 1993 catalog;
(3) the last page of a 1994 catalog; and (4) Bridgestone Japan’s corporate
profile, all of which plaintiff’s counsel declared he had retrieved from the
Internet. The 1994 catalog listed both
Bridgestone USA and Bridgestone Japan on the last page, which plaintiff argued
was evidence of a joint enterprise.
Bridgestone Japan did not object to plaintiff’s evidence other than to
note in its reply brief that the documents were of “dubious authenticity and
relevance.”

The motion was heard on November 6, 2009. Before the hearing, the trial court announced
a tentative ruling finding service was defective and Bridgestone Japan’s
contacts with California were insufficient to subject it to personal jurisdiction. At oral argument, plaintiff’s counsel stated
he had “conducted no discovery. You
can’t conduct discovery against a Japanese Company.” He admitted the jurisdictional issues were “a
matter of discovery and proof” but did not request a continuance to conduct
discovery. After oral argument, the
trial court adopted its tentative ruling and granted the motion.

Plaintiff then noticed and took the deposition of
Grant Peterson, a former employee of Bridgestone USA, a six-person operation in
California that sold bicycles in the United States. Peterson described himself as Bridgestone
USA’s “bike guy,” its technical expert on Bridgestone road bicycles, whose role
was to make bicycle design recommendations to Bridgestone Japan’s
engineers. He identified a bicycle in an
unidentified photograph (presumably the photograph plaintiff submitted in
opposition to Bridgestone Japan’s motion to quash) as a Bridgestone “RB-1” or
“RB-2,” model year 1988, 1989 or 1990, though he did not recognize some of the
parts. (“RB” is short for road
bicycle.) He testified RB bicycles were
sold in Japan and the United States and that Bridgestone USA distributed
Bridgestone Japan bicycles to dealers in the United States until 1994, when
Bridgestone Japan closed the operation.
Bridgestone USA occasionally hosted employees of Bridgestone Japan who
came to California to “see the operation” and “talk[] . . . about
business.” He was not present at or
involved in the business discussions.

Armed with Peterson’s testimony, plaintiff again served
Bridgestone Japan, this time by mailing the summons and complaint to
Bridgestone Corporation in Tokyo.

Bridgestone Japan again specially appeared and moved
to quash service, contending (1) service was defective because the Bridgestone
Corporation was not its manager or agent and (2) plaintiff was estopped by the
trial court’s November 9, 2009 order from relitigating the issue of personal
jurisdiction.

In opposition, plaintiff conceded Bridgestone Japan
had not been served but represented she was in the process of re-serving it at
its address in Ageo. She contended the
doctrine of estoppel did not apply because the trial court did not rule on the
minimum contacts issue in its November 9, 2009 order, granting the first motion
to quash only on the ground that Bridgestone Japan had not been properly
served. (This was an incorrect
recitation of the record.) Plaintiff
argued personnel from Bridgestone Japan collaborated with Bridgestone USA on
the design of her bicycle, sometimes visiting California for this purpose, and
Bridgestone USA was Bridgestone Japan’s office in the United States. Plaintiff supported the opposition with
excerpts from Peterson’s deposition testimony.


The motion was heard on July 23, 2010. The trial court again issued a written tentative
ruling before the hearing, finding plaintiff was estopped from relitigating the
jurisdiction issue and in any event failed to establish Bridgestone Japan’s
minimum contacts with California.

Despite its tentative ruling finding estoppel
precluded reconsideration of the minimum contacts issue, at the hearing the
trial court reconsidered the issue and read the transcript of Peterson’s
testimony. The court found the testimony
lacked foundation and was vague and unpersuasive. In a minute order issued after the hearing,
the court found service on Bridgestone Japan was again defective and plaintiff
failed to establish defendant’s contacts with California supported personal
jurisdiction. The minute order was
silent on the issue of estoppel.

In the meantime, plaintiff’s third attempt to serve
Bridgestone Japan was completed, and on September 22, 2010, Bridgestone Japan
filed its third motion to quash.
Plaintiff did not oppose the motion, representing that service had been
inadvertent. The trial court granted the
motion, finding plaintiff was estopped from relitigating jurisdiction. Plaintiff does not appeal from this order.

Plaintiff timely appealed from the second order
quashing service.

DISCUSSION

The sole issue on appeal is whether
the trial court acquired personal jurisdiction over Bridgestone Japan. “Personal jurisdiction over a nonresident
defendant depends upon the existence of essentially two criteria: first, a basis
for jurisdiction must exist due to defendant’s minimum contacts with the forum
state; second, given that basis for jurisdiction, jurisdiction must be >acquired by service of process in strict
compliance with the requirements of our service statutes.” (Ziller
Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229 (>Ziller).) “Upon challenge by a specially appearing
nonresident defendant pursuant to section 418.10, a plaintiff must establish
that both criteria are met.” (>Ibid.)

We conclude plaintiff failed to establish either a
basis for, or acquisition of, jurisdiction over Bridgestone Japan.

A. Failure to Serve Bridgestone Japan

Plaintiff admitted at the July 23,
2010 hearing, and the trial court found, that Bridgestone Japan had not been
served with the summons and complaint.
Plaintiff ignores this finding on appeal.

The court in which an action is pending acquires
jurisdiction over a party from the time summons is served as provided by
section 413.10 et seq. (§ 410.50, subd.
(a).) When the defendant is a
corporation, service must be effectuated on the corporation’s
representative. (See >Dill v. Berquist Construction Co. (1994)
24 Cal.App.4th 1426, 1435; Judicial Council com., 14B West’s Ann. Code Civ.
Proc. (2004 ed.) foll. § 416.10, p. 111.)
Summons may be served on a corporation by delivery (1) to a person designated
as agent for or authorized to receive service of process, (2) to “the
president, chief executive officer, or other head of the corporation, a vice
president, a secretary or assistant secretary, a treasurer or assistant
treasurer, a controller or chief financial officer, [or] a general manager,” or
(3) as provided in Corporations Code section 2110. (§ 416.10.) Corporations Code section 2110 provides that
summons may be served on a foreign corporation by delivery to any officer of
the corporation or its general manager in California, or to any person
designated by the corporation as agent for service of process. Service on a foreign corporation outside the
United States may also be effected “as directed by the court in which the
action is pending, or, if the court before or after service finds that the
service is reasonably calculated to give actual notice, as prescribed by the
law of the place where the person is served or as directed by the foreign
authority in response to a letter rogatory,” subject to “the provisions of the
Convention on the ‘Service Abroad of Judicial and Extrajudicial Documents’ in
Civil or Commercial Matters (Hague Service Convention).’” (§ 413.10, subd. (c); see >Volkswagenwerk Aktiengesellschaft v. Schlunk
(1988) 486 U.S. 694, 706.)

“In the absence of a voluntary submission to the
authority of the court, compliance with the statutes governing service of
process is essential to establish that court’s personal jurisdiction over a
defendant.” (Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1439.)
“When a defendant challenges that jurisdiction by bringing a motion to
quash, the burden is on the plaintiff to prove the existence of jurisdiction by
proving, inter alia, the facts requisite to an effective service. (Id.
at pp. 1439-1440; see Judicial Council, com., 14B West’s Ann. Code Civ. Proc.
(2004 ed.) foll. § 418.10, p. 181.)

Plaintiff admittedly served the second summons by
delivering it to Bridgestone Corporation in Tokyo, not Bridgestone Japan in
Ageo. Although Bridgestone Japan
admitted it was a wholly owned subsidiary of Bridgestone Corporation, plaintiff
has not shown and does not contend anyone at Bridgestone Corporation was
Bridgestone Japan’s officer, agent, or manager.
Because plaintiff failed to serve Bridgestone Japan or any
representative with the second summons, the trial court had no jurisdiction
over defendant. It thus properly granted
Bridgestone Japan’s motion to quash.

B. Lack of Minimum Contacts

The second basis for the trial
court’s order was that Bridgestone Japan had insufficient minimum contacts with
California to support jurisdiction. We
agree with the trial court that California’s long-arm statute does not reach
Bridgestone Japan.

California courts may exercise
jurisdiction over nonresidents “on any basis consistent with the Constitution
of California and the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States.” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054,
1061; §410.10 [long-arm statute].) These
constitutions permit the exercise of jurisdiction over a nonresident defendant
“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.”’ [Citations.]” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (>Vons).)
“[E]ach individual has a liberty interest in not being subject to the
judgments of a forum with which he or she has established no meaningful minimum
‘contacts, ties or relations.’
[Citation.] As a matter of
fairness, a defendant should not be ‘haled into a jurisdiction solely as the
result of “random,” “fortuitous,” or “attenuated” contacts.’ [Citation.]”
(Id. at p. 445.) Nor is the minimum contacts test satisfied by
“‘[t]he unilateral activity of those who claim some relationship with a
nonresident defendant . . . .’” (>Burger King Corp. v. Rudzewicz (1985)
471 U.S. 462, 474 [105 S.Ct. 2174, 85 L.Ed.2d 528].)

“Personal jurisdiction may be either
general or specific.” (>Vons, supra, 14 Cal.4th at p. 445.)
Because plaintiff does not claim general jurisdiction, we only consider
whether specific jurisdiction exists here.
A nonresident defendant “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 contacts with the
forum.’ [Citations]” (Vons,
supra, 14 Cal.4th at p. 446.)

“When a defendant moves to quash service of process on
jurisdictional grounds, the plaintiff has the initial burden of demonstrating
facts justifying the exercise of jurisdiction.
[Citation.]” (>Vons, supra, 14 Cal.4th at p. 449.)
Plaintiff must meet this burden with competent evidence. (Nobel
Farms, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657-658.) The evidence need not be conclusive, nor need
plaintiff prove the elements of her causes of action. But she must provide some evidence allowing
the trial court to conclude Bridgestone Japan’s contacts with California relate
to her causes of action. Allegations in
an unverified complaint and vague declarations of ultimate facts do not suffice
to establish the facts of jurisdiction; a plaintiff must provide declarations
and authenticated documents that permit the court to form an independent
conclusion. (Ibid.; Ziller, >supra, 206 Cal.App.3d at p 1233.) “A plaintiff is generally entitled to conduct
discovery with regard to a jurisdictional issue before the court rules on a
motion to quash.” (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 911.)

Once plaintiff has demonstrated facts establishing
minimum contacts with the forum state, it becomes the defendant’s burden to
demonstrate the exercise of jurisdiction would be unreasonable. (Vons,
supra, 14 Cal.4th at p. 449.)

We review the trial court’s factual determinations for
substantial evidence, but the ultimate question whether jurisdiction is fair
and reasonable under all the circumstances is a legal determination we review
independently. (Vons, supra, 14 Cal.4th
at p. 449.)

Plaintiff provides scant probative evidence of
Bridgestone Japan’s contacts with California.
The only facts plaintiff alleges in her unverified form complaint about
Bridgestone Japan are that it designed, manufactured and sold her bicycle. In opposition to defendants’ motions to
quash, plaintiff’s counsel has argued
that plaintiff’s husband bought her a Bridgestone RB-1 bicycle from a retailer
in Glendale, California; that the bicycle had a quick-release mechanism that
permitted the front wheel to be removed quickly; and that this mechanism
malfunctioned, causing the front wheel to come off while plaintiff rode the
bicycle. Plaintiff has never attempted
to support any of these assertions with evidence.

For example, plaintiff’s entire showing in opposition
to Bridgestone Japan’s first motion to quash was an unauthenticated photograph
of a Bridgestone bicycle and several unauthenticated pages from various
Bridgestone bicycle catalogs, one of which bore Bridgestone Japan’s address on
the last page. Nothing indicated
Bridgestone Japan manufactured her bicycle or that it was sold in California or
even that plaintiff owned and rode it.
(The only evidence connecting plaintiff to the bicycle was counsel’s
hearsay declaration.) Plaintiff thus
failed utterly to show that Bridgestone Japan had even a single contact with
California, much less any contact related to her claim.

In opposition to Bridgestone Japan’s second motion to
quash, plaintiff relied exclusively on excerpts from Peterson’s deposition
testimony. Presented with an
unidentified photograph of a Bridgestone bicycle, Peterson testified the RB
model (which was not a 1992 model, as plaintiff’s counsel had claimed, but was
“within a year of 1989” was sold in both Japan and the United States. He
was apparently never asked whether it was ever sold in California.

Peterson identified only three contacts of Bridgestone
Japan with California:
(1) Bridgestone Japan engineers consulted with Peterson regarding
bicycle design; (2) unidentified Bridgestone Japan employees occasionally
visited California to observe Bridgestone USA’s operations and talk about
unspecified business; and (3) Bridgestone Japan closed Bridgestone USA in 1994. The trial court was unimpressed, commenting
several times during the hearing that there was no foundation for Peterson’s
opinion regarding the activities or structure of Bridgestone Japan.

To show specific jurisdiction, plaintiff must
establish that her causes of action arose out of or relate to Bridgestone
Japan’s acts in or connection with this state.
(Jewish Defense Organization, Inc.
v. Superior Court (1999) 72 Cal.App.4th 1045, 1058.) “[T]he question is whether the quality and
nature of petitioners’ forum-related activity in relation to [the] complaint is
sufficient to permit California to exercise jurisdiction over them. [Citations.]
To prevail, [plaintiff] must establish the causes of action arose out of
an act committed or transaction consummated in California, or that petitioners
performed some other act by which they purposefully availed themselves of the .
. . benefits and protections of the state’s laws.” (Mansour
v. Superior Court (1995) 38 Cal.App.4th 1750, 1758-1759.) The “‘purposeful availment’ requirement for
specific jurisdiction can be satisfied by the ‘effects test,’ set out in >Calder v. Jones (1984) 465 U.S.
783. [Citation omitted.] ‘Under Calder,
personal jurisdiction can be based upon:
“(1) intentional actions (2) expressly aimed at the forum state (3)
causing harm, the brunt of which is suffered — and which the defendant knows is
likely to be suffered — in the forum state.”’”
(Jewish Defense Organization, Inc.
v. Superior Court, supra,72
Cal.App.4th at p. 1057.) Minimally, the
defendant must engage in some action “purposefully directed toward the forum
state.” (Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102,
112.) Isolated meetings that are
unrelated to the subject matter in dispute do not support a finding of specific
jurisdiction. (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1101; >Edmunds v. Superior Court (1994) 24
Cal.App.4th 221, 234.)

Plaintiff failed to establish that Bridgestone Japan
directed any relevant activity toward or sold even a single bicycle in
California. Plaintiff argues Bridgestone
Japan sold tens of thousands of bicycles in the United States, “including
California.” We can accept that
Bridgestone Japan sold bicycles in the United States, but no evidence in the
record specifically indicates Bridgestone Japan’s bicycles were sold in
California.

Plaintiff argues Bridgestone Japan purposely availed
itself of the benefits of conducting activities in California by placing its
bicycles in a stream of commerce that it knew would flow to California. The argument is without merit. Again, no competent evidence supports
plaintiff’s contention that Bridgestone Japan sold any bicycle that reached
California. Assuming for the sake of
argument that Bridgestone Japan bicycles reached California, the mere act of
placing a product in the stream of commerce, without more (“such as special
state-related design, advertising, advice, marketing, or anything else” is not
enough to constitute purposeful availment.
(J. McIntyre Machinery, Ltd. v.
Nicastro (2011) 564 U.S. ___ [131 S.Ct. 2780, 2792, 180 L.Ed.2d 765] (conc.
opn. of Breyer); Dow Chemical Canada ULC
v. Superior Court (2011) 202 Cal.App.4th 170, 178.)

Plaintiff having presented no evidence of Bridgestone
Japan’s minimum contacts in California, the burden never shifted to defendant
to show lack of minimum contacts.
Bridgestone Japan nevertheless presented the declaration of Tamura, one
of its division managers, who stated that Bridgestone Japan never sold a
bicycle in California. The trial court
credited the statement. Although the
rest of Tamura’s declaration was inapposite in that he described Bridgestone
Japan’s present lack of California
activities, it was well within the trial court’s discretion to find Bridgestone
Japan had not sold any bicycle in or initiated any sale to California.

Plaintiff has not met her burden to show with
competent evidence either that Bridgestone Japan was served with the summons or
had sufficient minimum contacts with California to justify the exercise of
personal jurisdiction. We therefore do
not need to consider whether the assertion of personal jurisdiction would
comport with fair play and substantial justice.

We feel constrained to address two misrepresentations
the parties make concerning the record below.
First, Bridgestone Japan argues at length that in granting the second
motion to quash the trial court relied on the doctrine of direct estoppel
articulated in Sabek, Inc. v. Engelhard
Corp. (1998) 65 Cal.App.4th 992, 998, which held that issue preclusion may
bar a plaintiff from maintaining a further action in the state once an order
finding personal jurisdiction to be absent becomes final. The argument is unsupported by the
record. True, the trial court’s >tentative ruling relied on >Sabek, and the court made several
references to the case during oral argument, but the final minute order did not
incorporate the tentative ruling or make reference to Sabek or the doctrine of issue preclusion. Second, plaintiff repeatedly contends the
trial court continued the hearing on the first motion to quash to permit
plaintiff to conduct jurisdiction discovery and develop further facts
concerning the minimum contacts issue.
The contention finds no support in the record and was expressly rejected
by the trial court at the hearing on the second motion.

>DISPOSITION

The trial
court’s July 23, 2010 order granting respondents’ motions to quash service is
affirmed. Respondents are to recover
their costs on appeal.

NOT TO BE
PUBLISHED.







CHANEY, J.



We concur:







ROTHSCHILD, Acting P. J.







JOHNSON, J.