Sukumar v. Health Tech Resources
Filed 3/29/13 Sukumar v. Health Tech Resources CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
PONANI SUKUMAR et al.,
Plaintiffs and Appellants,
v.
HEALTH TECH RESOURCES, INC., et
al.,
Defendants and Respondents.
D054985
(Super. Ct. No. 37-2007-00052071-
CU-BC-NC)
ORDER MODIFYING
OPINION, DENYING PETITION FOR REHEARING AND DENYING REQUEST FOR PUBLICATION
THE COURT:
The opinion
filed March 11, 2013 is
Page 1,
second paragraph, second sentence, is modified as follows: The equipment was manufactured in Italy
by Air Machine
by Air Machine SRL, an Italian company (SRL).
The petition for rehearing has been considered by Justices
Benke, Huffman and Irion and is denied.
Justice Benke would grant rehearing.
The request
for publication has been considered by Justices Benke, Huffman and Irion and is
denied. Justice Benke would grant the
request for publication.
THERE IS NO
CHANGE IN JUDGMENT.
HUFFMAN, Acting P. J.
Copies
to: All parties
Filed 3/11/13 Sukumar v. Health Tech Resources CA4/1
(unmodified version)
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opinion has not been certified for publication or ordered published for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.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
PONANI SUKUMAR et al.,
Plaintiffs and Appellants,
v.
HEALTH TECH RESOURCES, INC., et
al.,
Defendants and Respondents.
D054985
(Super. Ct. No. 37-2007-00052071-
CU-BC-NC)
APPEAL from
an order of the Superior Court
of San Diego County,
Michael B. Orfield, Judge. Affirmed.
Ponani
Sukumar entered into a contract with Health Tech Resources, Inc. dba Impact
Fitness Systems (Health Tech) whereby Sukumar purchased certain exercise equipment. The equipment was manufactured in Italy
by Air Machine Com SRL, an Italian company (SRL). Because he believed the exercise equipment
was defective, Sukumar, along with his physical rehabilitation clinic Southern
California Stroke Rehabilitation Associates (SCSRA) brought suit against
multiple defendants,
name="_ftnref1" title="">[1]
including Health Tech, Thomas Eggers (Health Tech's president and owner), and
SRL. SRL moved to quash service of
summons because of a lack of personal jurisdiction, and the court granted the motion.
Sukumar and
SCSRA appeal, arguing the court erred in finding that SRL was not subject to
personal jurisdiction in California. Specifically, they argue SRL purposefully
availed itself of the benefits of doing business in California, their suit relates
to SRL's contacts with California, and SRL did not show the superior court's
exercise of jurisdiction in this matter would be unreasonable. In the alternative, Sukumar and SCSRA contend
SRL waived its jurisdictional objection by engaging in discovery unrelated to
jurisdictional issues. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
We glean
the facts from the evidence submitted in support of and in opposition to SRL's
motion to quash.
title="">[2] Our ability to gather the pertinent facts was
somewhat hindered by the state of the record.
The parties disputed many of the relevant facts bearing on the existence
of jurisdiction, and Sukumar and SCSRA's appendix omitted some of the key
pleadings and evidence that supported the court's order in this matter. In an appeal of a court's order on a motion
to quash, we review the superior court's factual findings of disputed facts
under a substantial evidence standard. (
649.) As such, the record should include
the evidence that supports the court's determination, not just that which
support's the appellants' position.
Fortunately, SRL's respondent's appendix filled in the evidentiary gaps,
and we had an appropriate record on which to review the court's order.
Sukumar's
Introduction to SRL
In 1997,
Sukumar began investigating the utility of medical grade exercise equipment,
initially as a means of helping his then ailing father recover from a
symptomatic stroke. Around this time,
Sukumar also pursued a business, SCSRA, focused on physical rehabilitation
through weight resistance techniques.
Sukumar visited several suppliers and traveled to trade shows featuring
exercise equipment, including a show in Las Vegas, Nevada in 1998. At the Las Vegas trade show, Sukumar met Bill
Kazmaier, an independent distributor of exercise equipment, including SRL's
products. Sukumar requested catalogs of
SRL's equipment and related information.
Kazmaier relayed Sukumar's request to SRL. SRL sent catalogs and related literature to
Sukumar.
SRL was a
manufacturer of exercise equipment based in Italy. It is undisputed that SRL never registered to
do business in California; designated an agent for service of process in
California; opened any financial or bank account in California; owned, rented
or leased any real property in California; or occupied offices in California.
In October
1999, SRL's export manager, Michael Taddese, called Sukumar and told him that
Taddese had heard through Kazmaier that Sukumar was interested in SRL's
exercise equipment and products and asked Sukumar if there were any additional
questions he needed answered about the equipment. Taddese also faxed Sukumar a letter on
company letterhead stating that SRL was "interested in continu[ing] the
eventual relationship hoping both Companies have a mutual interest" and
"looking forward to hearing from you [Sukumar] soon," and that SRL
would be sending Sukumar a catalog of SRL's products, a flyer for its network
system and operation manuals, among other items. Taddese explained that he sent the letter to
Sukumar in response to Sukumar's request after their telephone conversation.
In March
2001, Francesco Fantini, a representative of SRL, attended a trade show in San
Francisco to make contacts for potential distributors around the world. After the trade show, SRL sent letters to
entities interested in becoming a distributor of SRL's exercise equipment.
Health
Tech Becomes a Distributor of SRL Products
After the
San Francisco trade show, which Eggers attended, Eggers expressed interest in
becoming in becoming a U.S. distributor for SRL products. SRL subsequently sent Eggers a letter stating
it was "enthusiastic in starting a business relationship with you"
and "firmly believe[d] in the development of the U.S.A. market." SRL also provided Eggers with Sukumar's
contact information.
Ultimately,
Eggers, on behalf of his company Health Tech, signed a distributor agreement
with SRL in January 2004. The
distributor agreement established Health Tech as a distributor with the right
to sell SRL's product within a defined territory and SRL as a supplier of the
products to be sold. It also made clear
that Health Tech was to be an independent contractor with no authority to act
on behalf of SRL (including entering into binding contracts on SRL's behalf),
and any litigation arising out of the distributor agreement was to take place
in Italy and be governed by Italian law.
In addition, the distributor agreement prevented SRL from selling
directly to customers in the distributor's territory, unless Health Tech
granted SRL permission to do so.
Sukumar Reaches an Agreement With Health
Tech to Purchase SRL Exercise Equipment
Eggers
subsequently made contact with Sukumar and provided Sukumar with information
and a price list in September 2001. At that
time, Sukumar had hired Frank Smith as a consultant. In September 2001, SRL sent Smith a CD-rom
containing updated product information and a price list. Later that month, Smith received a copy of a
proposal from Eggers to Sukumar. Taddese
was copied on the proposal as well.
Among other things in the proposal, Eggers informed Sukumar that
"[t]o address the very important issue of service, [SRL] will have [its]
chief engineer to assist with your entire installation and set up, as well as
provide 'hands on' detailed training sessions for your service personnel."
In May
2002, Taddese and David Sanson (also of SRL) traveled to Kansas to meet with
Eggers to discuss further the possibility of Eggers and/or his company, Health
Tech, becoming a distributor of SRL's products.
Because Sukumar kept asking Eggers technical questions about SRL's
products, Eggers asked Taddese and Sanson to accompany him to visit Sukumar in
San Diego. It is undisputed that
Taddese, Sanson, and Eggers flew to San Diego and met with Sukumar and William
Stout, who at the time owned a fitness supply and service company in San
Diego. Sukumar and SRL presented very
different versions of what occurred at this May 2002 meeting.
In opposing
the motion to quash, Sukumar submitted his declaration. According to this declaration, during the May
2002 meeting, Taddese and Sanson provided Sukumar with information relating to
the SRL equipment, including a "guarantee" concerning SRL's products. Taddese and Sanson urged Sukumar to purchase
SRL equipment, which they described as being "high quality." Taddese also told Sukumar that SRL wanted a
showroom for its Air Machine product line and suggested that one of the clinics
Sukumar intended to open in California could serve that purpose.
Sukumar
told Taddese and Sanson during their meeting that he would not purchase any SRL
equipment unless there was a factory-trained technician in San Diego to address
maintenance and repair issues involving the equipment. In response, the "SRL
representatives" agreed that SRL would train Stout at its factory in Italy
so Stout could service the equipment following its delivery in California.
During this
same meeting, Sukumar also discussed the status of certain "projects"
between him and SRL.
SRL
presented evidence that painted an entirely different picture of the May 2002
meeting. SRL provided a declaration from
Taddese that stated he and Sanson made clear to Sukumar that they were present
only at the request of Eggers to answer technical questions about SRL's
products and any "purchases or dealings" concerning SRL's products
would have to go through Eggers. In
addition, Taddese stated the discussion at the May 2002 meeting was limited to: technical issues about SRL's products; SRL's
competitors' products and possible ways to test those products for certain
functions; and Sukumar's future plans and the reasons for his interest in SRL's
products. According to Taddese, Sukumar
was concerned about spare parts for SRL's exercise machines and was told that
the distributor agreement between Health Tech and SRL required Health Tech, as
the distributor, to maintain adequate spare parts. Sukumar also asked about pricing if he
purchased the entire line of product, and Eggers assured him the pricing would
be competitive. In addition, Sukumar
wanted Stout to be trained at SRL's factory in Italy. Eggers assumed that it could be arranged and
Taddese stated that he did not see any reason Stout could not visit SRL's
factory.
a formal training program or "certified" factory service
providers. Taddese did not offer to pay
for Stout's training in Italy.
SRL also
submitted the declaration of Sanson, which supported much of Taddese's
declaration. Among other things, Sanson
declared: "At the May [2002]
Meeting it quickly became apparent that Mr. Sukumar was a technical minded
person, likely trained as an engineer, and one who had made an intensive study
of exercise equipment. Much of our
meeting time was taken up by extended theoretical questions about the machines,
including competitive products. Mr.
Sukumar wanted to know if various testing protocols had been established or if
they could be. I advised him that such
testing as he described was not something that [SRL] did, but that I believed
some University professors in Italy might be interested and that I would put
him in contact with them. I later did
this as a courtesy to him and there was a proposal by Mr. Taddese's Company
(GLOBAL SOLUTION, a company established by Mr. Taddese after he left SRL, and
absolutely unrelated to SRL). This
proposed testing and study was never part of [SRL's] function and no agreement
was entered into between SRL and Sukumar."
In August
2003, Eggers sent a written proposal to Sukumar for about $156,000 of SRL
equipment. The proposal had SRL's logo
on the front and included a diagram prepared by Sanson, at Eggers's request,
showing the positioning of SRL's Tech Line of equipment at Sukumar's facility
located in Solana Beach. The written proposal
also stated the equipment was to be purchased from Health Tech, which would be
responsible for shipping the equipment from Italy to San Diego. The proposal indicated that "[SRL] will
fly Mr. Billy Stout to the factory to be trained and certified as a
professional [SRL] technician."
Sukumar
claimed SRL directly sent him two separate, written proposals dated
October 27, 2003, regarding its exercise equipment. In his declaration, Sukumar contended
"SRL recently produced [the written proposals] to my attorneys in this
case." SRL, however, produced
evidence that these written proposals were never made to Sukumar, but they
instead were provided to Eggers for his prospective order with Sukumar. The written proposals listed the price of the
products in Euros and included a distributor discount of 25 percent of the list
price. In addition, the written
proposals indicated the equipment would be delivered in Italy.
In December
2003, Eggers sent Sukumar a revised proposal that included the SRL logo on the front
of the document. It reiterated many of
the other terms and conditions as the August 23, 2003 proposal. However, the December 2003 proposal stated
"[SRL] will include spare parts for inventory based on the Tech Line
Isotonic machines in San Diego to support any needed warranty parts and work
for two years."
After
Eggers signed the distributor agreement with SRL, he wrote Sukumar and
"confirm[ed]" that "any legal disputes between [Eggers's
company,] Health Tech Resources, Inc.-Air Machine and P.N. Sukumar [would] be
conducted in San Diego . . . ." Sukumar declared he wanted assurances before
purchasing the SRL equipment that any dispute involving such equipment would be
conducted in San Diego and not in Italy because the equipment was going to be
physically located in San Diego.
On February
26, 2004, Eggers sent Sukumar a "Contractual Agreement for Air Machine
Order" (purchase agreement), in which Sukumar agreed to purchase more than
$120,000 of SRL equipment and product from Health Tech. Among other things, the purchase agreement
stated that after receipt of "the initial 50% down payment" Health
Tech "will fly . . . Stout . . . to the factory in Italy to be trained and
certified on the entire Tech line of Air Machines both Isotonic and Cardio
Lines." The purchase agreement also
reiterated that "any litigation about the quality of the Air Machine or
manufacturing defect[s] or any other . . . issues" involving Sukumar,
Eggers, or SRL would be conducted in San Diego California, "regardless
interpreted in the distributor[ship] agreement between [SRL and Health Tech] .
. . ."
Sukumar
admitted that in connection with the purchase agreement, he also received from
Eggers a copy of the distributor agreement.
Sukumar stated he did not read that agreement, but instead relied on it
as proof of the existence of a formal relationship between Eggers and SRL,
which Sukumar declared was then a primary concern to him. Also of importance to Sukumar was the fact
Eggers "spoke for SRL," which Sukumar testified was confirmed both by
Eggers and SRL employees. However,
Sukumar signed each page of the copy of the distributor agreement he was given
and noted on the last page that he had "seen all 9 pages start to
finish."
After
signing the purchase contract, Sukumar insisted that Eggers, on behalf of
Health Tech, sign an addendum. The
addendum included the following provisions:
"Whereas, the parties to
the 2/26/04 Agreement intended that Health Tech act on behalf of and bind [SRL]
to the terms and conditions of the 2/24/04 [sic] Agreement;
"Whereas, the
Distributorship Agreement between [SRL] and Health Tech executed on 1/16/04,
Article 4 states:
" 'The Distributor (Health
Teach Resources Inc.) is not entitled to act in the name of or on behalf of the
Supplier [SRL] and has no authority to bind the Supplier towards third parties;
"Whereas, the intent of
[SRL], the Supplier in the Distributorship Agreement of 1/16/04 is to modify
that Agreement, ratify the 2/26/04 Agreement and be bound by the terms of the
2/24/04 Agreement.
"[SRL] hereby agrees to be
bound by the terms and conditions agreed to by its Distributor, Health Tech in
the 2/26/04 Agreement and waives the provisions of Article 4 of the 1/16/04
Distributorship Agreement for the purposes of the 2/26/04 Agreement."
Both
Sukumar and Eggers (on behalf of Health Tech) signed the addendum. SRL did not.
Curiously, the addendum referred to specific language in the very
distributor agreement Sukumar claimed to never have read.
In May
2004, Stout traveled to SRL's factory in Italy to be trained to service SRL's
products. However, Stout admitted that
it was Eggers who contacted him about going to Italy to be trained, and Stout
did not know who paid for his travel and lodging costs.
Sukumar received the SRL exercise
equipment in January 2005, "almost a year late." SRL subsequently shipped spare and
replacement parts directly to Stout in San Diego.
In late
2006, SRL apparently shipped spare parts direct from Italy to a company called
Advantage Fitness Products.
The
Dispute
After
taking delivery, Sukumar found multiple problems with the equipment including,
among other things, missing parts, software that did not work as contemplated,
and improper color schemes on the "movement arms" of the equipment
and its upholstery. Over the next
several months, Eggers unsuccessfully attempted to resolve these problems to
the satisfaction of Sukumar.
name="_ftnref6" title="">[6]
Sukumar's
operative complaint asserted causes of action against SRL, among other
defendants, for breach of contract, breach of express and implied warranties,
breach of the implied covenant of good faith and fair dealing, violation of
Business and Professions Code section 17200 et seq., and promissory
estoppel. The basis of the complaint
against SRL was that it manufactured exercise equipment at its factory in Italy
that had multiple defects, making the equipment unusable for Sukumar's planned
rehabilitation clinic or clinics.
Motion
to Quash
SRL moved
to quash service on the basis it lacked sufficient minimum contacts with
California to subject it to jurisdiction in this state. SRL argued that it never conducted business
in California. It emphasized that it
signed a distributor agreement with Health Tech, and Health Tech sold SRL's
equipment to Sukumar. SRL also argued
Health Tech had no authority to bind SRL and that all of SRL's contact with
Sukumar was at Sukumar's or Eggers's request.
Sukumar and
SCSRA opposed the motion to quash, arguing primarily that SRL and Health Tech
worked together to complete the sale of exercise equipment. Sukumar and SCSRA contended SRL directly
solicited Sukumar and then used a distributor toward the end of the sales
efforts to shield SRL from having to litigate any disputes in California.
After
considering the pleadings, evidence, and objections to evidence submitted in
support of and in opposition to the motion to quash and hearing oral argument,
the court granted SRL's motion. The
court found Sukumar "provided insufficient evidence that: (1) Defendant SRL had purposefully availed
itself of the forum benefits with respect to the matter in controversy; (2) the
controversy is related to or arises out of defendant's contacts with the forum;
and (3) the exercise of jurisdiction would comport with fair play and substantial
justice."
Specifically,
the superior court found it undisputed that SRL: "Has never registered to do business in
California; [¶] [n]ever designated an agent for service of process in
California; [¶] [n]ever had any financial accounts in California; [¶] [n]ever
owned, rented or leased any real property in California; [¶] [n]ever had
offices in California; [¶] [n]ever
contracted with anyone in California; [¶] [d]oes not market or advertise
its products in the US [except through an apparently non-interactive website
and through independent distributors]; [¶] [d]oes not have employees in the US,
only a distributor in Kansas; [¶] [s]old its products in such a manner as to
have the distributors take possession of the product in Italy, and distributors
arranged for all shipping to the US; [and] [¶] Plaintiff [Sukumar] never paid
SRL directly for any product."
The
superior court further found that SRL attempted to distance itself from the
California market as follows: "1)
by being careful to sign no contracts with California or other US residents
directly; 2) by arranging for an independent distributor to serve any customers
in the US, and to serve the Plaintiff in California; 3) by specifically
providing in the Distributor Agreement that Kansas distributor had no authority
to bind SRL per [that] Agreement [citation]; 4) by specifically providing in
the Distributor Agreement Italian law is to govern the relationship between the
Distributor and SRL; and 5) by being very careful in its contracts and dealings
with distributors, to have the distributor be responsible for the product once
the distributor takes possession of it (per the 'ex works' designation on the
bills of lading) in Italy."
As to the
issue of purposeful availment, the trial court found Sukumar's evidence
"unpersuasive," ruling as follows:
"There is evidence
Defendant SRL contracted with Thomas R. Eggers to be its independent
distributor on [January 1, 20]04 [citation].
However, the evidence is that Eggers was, in fact, independent of SRL
and not controlled by SRL[.] [¶] There is evidence that at the time SRL
contracted with Mr. Eggers, SRL had already established some contacts directly
with Plaintiff Sukumar in California which eventually culminated in a purchase
by Sukumar of [SRL] product of approximately $100,000.00 in 2004. However, in each case, the court finds that
the contact with Sukumar was initiated and orchestrated by Sukumar and not by
SRL.
"For example: [¶] a)
The telephone call from Michael Taddese, [SRL's] Export Manager, to
Sukumar in 1999 was in response to an inquiry by Mr. Sukumar [citation]; [¶] b)
the fax dated [October 26, 19]99 from Taddese to Sukumar involving various
manuals, marketing information, and price quotes for SRL's 'Air Machine'
exercise equipment was in response to a request for same by Sukumar [citation];
[¶] c) a two-hour meeting between SRL's employees Taddese and Sanson on the one
hand, and Plaintiff, on the other hand, in May of 2002 or 2003 was held in San
Diego. Also present were Thomas Eggers
and William Stout. However, there is
evidence that the SRL representatives were in Kansas for a meeting with their
distributor, Eggers, and were requested by Eggers to extend the trip to include
a trip to San Diego to answer technical questions for Mr. Sukumar that Eggers
was unable to address himself; d) an informal agreement was arranged between
the SRL representatives, distributor Eggers, Plaintiff and Plaintiff's service
representative, William Stout, that SRL would allow Stout at an unspecified
time in the future to, visit the factory in Italy for training on how to
service the Air Machine products.
[Citation.] However, Sukumar has
admitted that he insisted on this arrangement as a condition of purchasing
product from Eggers. It is not clear
that SRL's participation was anything more than as a concession to its
distributor to assist Eggers in his dealings with Sukumar; [and e)] At Eggers'
request and as a service provided to distributors, SRL provided a proposed
layout for the products ordered by Eggers for Sukumar on [August 23, 20]03
[citations]. However, again, there is
evidence that the layout was done for Distributor Eggers by SRL, not directly
for Sukumar.
"Based on the foregoing,
the court finds that SRL did not purposefully avail itself of forum benefits,
but made every effort to divert any such benefits away from SRL directly to its
distributor. Further, contacts between
SRL and Sukumar were not 'purposeful' in the sense that SRL sought Sukumar out. Rather, Sukumar aggressively sought SRL out."
With
respect to the requirement the contacts "arise out of" or "are
related to" the action, the court found:
"[T]his controversy is not related to and does not arise out of the
defendant's contacts with California.
Rather, this controversy arises almost exclusively with Plaintiff's
contacts with Italy through independent distributor Eggers."
Finally,
with respect to the requirement the exercise of jurisdiction by California
comport with fair play, the court found the exercise of jurisdiction in California
would not be "fair or reasonable," inasmuch as "SRL went to
great lengths to limit its exposure. It
curtailed direct sales of its products to customers, including distributors,
who agreed to take responsibility for the product in Italy. It created a Distributor Agreement in this
case, to give notice to everyone concerned that Eggers was to be the
responsible party to Sukumar for the product, and that SRL would deal directly
only with Eggers. It used considerable
restraint in interjecting itself into the relationship between Eggers and the
California Plaintiff, dealing directly [with] Plaintiff only at Plaintiff's
insistence. The burden on SRL to defend
the action in California, without employees or representatives here, would be
disproportionate to its contacts. Last,
this is an issue of international commerce over which California has no more
interest than Italy. The tort causes of
action mounted by Plaintiff are not for personal injury, but are, again,
business torts that can be just as easily adjudicated in Italy."
Sukumar and
SCSRA timely appealed the court's order.
DISCUSSION
I
"State
courts will assert personal jurisdiction over nonresident defendants which have
been served with process only if those defendants have such minimum contacts
with the state to ensure that the assertion of jurisdiction does not violate '
" ' "traditional notions of fair play and substantial
justice." ' " '
[Citations.] 'It is
well-established that only " ' "random,"
"fortuitous," or "attenuated" contacts' " do not
support an exercise of personal jurisdiction.
[Citation.] In analyzing such
issues, the courts have rejected any use of " 'talismanic jurisdictional
formulas.' " [Citation.] Rather, " ' "the facts of each case
must [always] be weighed" in determining whether personal jurisdiction
would comport with "fair play and substantial justice." ' [Citation.]"
" (CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th
1101, 1117 (CenterPoint).)
contacts" may support either general or specific jurisdiction. (Aquila,
Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.) Sukumar and SCSRA do not argue SRL is subject
to the superior court's general jurisdiction.
Instead, they argue SRL's contacts with California subject it to
specific jurisdiction in San Diego County superior court. " ' "Specific jurisdiction results
when the defendant's contacts with the forum state, though not enough to subject
the defendant to the general jurisdiction of the forum, are sufficient to
subject the defendant to suit in the forum on a cause of action related to or
arising out of those contacts.
[Citations.] Specific jurisdiction exists if: (1) the defendant has purposefully
availed itself of forum benefits with respect to the matter in controversy; (2)
the controversy is related to or arises out of the defendant's contacts with
the forum; and (3) the assertion of jurisdiction would comport with fair play
and substantial justice."
[Citation.]' " (
466 U.S. 404, 414-415 [in determining whether specific jurisdiction exists,
courts generally look to the relationship among the defendant, the forum, and
the litigation].)
II
"When a
nonresident defendant challenges personal
of the evidence, the factual basis justifying the exercise of
jurisdiction. [Citation.] The plaintiff must do more than merely allege
jurisdictional facts; the plaintiff must provide affidavits and other
authenticated documents demonstrating competent evidence of jurisdictional
facts. [Citation.] If the plaintiff does so, the burden shifts
to the defendant to present a compelling case that the exercise of jurisdiction
would be unreasonable.
[Citation.]" (BBA
Aviation PLC v. Superior Court (2010)
190 Cal.App.4th 421, 428-429.) "In
this analysis, the merits of the complaint are not implicated." (F. Hoffman-La Roche, Ltd. v. Superior
Court (2005) 130 Cal.App.4th 782, 794.)
"Where the
evidence of jurisdictional facts is not in conflict, we independently review
the trial court's decision.
[Citation.] To the extent there
are conflicts in the evidence, we must resolve them in favor of the prevailing
party and the trial court's order."
(Malone v. Equitas Reinsurance Ltd.
(2000) 84 Cal.App.4th 1430, 1436.) We
review the trial court's resolution of factual conflicts under the substantial
evidence standard. (People v. Mickey, supra,
54 Cal.3d at p. 649; Integral Development
Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 585.) Under this standard, "the power of an
appellate court begins and ends with the determination as to whether there is
any substantial evidence, contradicted or uncontradicted, which will support
the finding of fact." (
805, 807, italics omitted.) "
'[S]ubstantial evidence' is . . . evidence . . . 'of ponderable legal
significance, . . . reasonable in nature, credible, and of solid value.' [Citations.]" (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) Such evidence may be in the form of
declarations. (Atkins, Kroll & Co. v. Broadway Lumber Co. (1963) 222 Cal.App.2d
646, 654.) "We emphasize that the
test is not the presence or absence of a substantial conflict in the
evidence. Rather, it is simply whether
there is substantial evidence in favor of the respondent. If this 'substantial' evidence is present, no
matter how slight it may appear in comparison with the contradictory evidence,
the judgment must be upheld. As a
general rule, therefore, we will look only at the evidence and reasonable
inferences supporting the successful party, and disregard the contrary
showing." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631, italics
omitted.)
However, the dissent
asserts that we err in applying a substantial evidence standard of review here
to what it believes is "an overarching question of law." (Dis. opn.,
standard of review, reweighing evidence, making credibility determinations, and
ignoring the superior court's resolution of conflicting evidence. We are unaware of any accepted standard of
review that allows us to engage in tasks that generally belong to the superior
court. Further, there is nothing
talismanic about the determination of jurisdiction that either transforms an
appellate court into a trial court or warrants the creation of a new standard
of review.
In addition, it is
clear that the dissent misreads our opinion here. As we discuss below, after reviewing the
superior court's findings of fact under a substantial evidence standard, we
independently review the superior court's conclusions as to the legal
significance of these facts. (See
148 Cal.App.4th 556, 568.)
III
A. Purposeful Availment
The first prong,
purposeful availment of forum benefits, is established if a nonresident
defendant has "purposefully directed" its activities at forum
residents, "purposefully derived benefit" from forum activities, or
"purposely availed" itself of the privilege of conducting activities
within the forum state, thus invoking the benefits and protections of the
state's laws. (Vons Companies, Inc.
v. Seabest Foods, Inc. (1996) 14
Cal.4th 434, 446, citing Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472–473,
475.)
" '[P]urposeful
availment . . . focuses on the defendant's intentionality.' " (Pavlovich
v. Superior Court (2002) 29 Cal.4th 262, 269.) Courts look to the "nature and quality
of the activity in the forum state" and not to the quantity of a
defendant's contacts when determining whether a defendant is subject to specific
jurisdiction in a forum. (See e.g.,
50 Cal.App.4th 1859, 1869 (As You Sow).) Once satisfied, this prong ensures a
defendant will not be required to defend itself in a jurisdiction by reason of
"random, fortuitous or attenuated contacts" in that forum. (Burger King Corp. v. Rudzewicz, supra, 471 U.S. at p. 475.)
The purposeful
availment prong has been extensively litigated; in some cases a single act by
the defendant is sufficient if it creates a substantial contact with the
forum. (See McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 223
[concluding a single interaction by a nonresident defendant with a California
insured, in which the defendant assumed the insurance obligations of another
insurer and accepted the payments from the California insured was sufficient
minimum contacts to subject defendant to specific jurisdiction in California,
despite the fact the defendant did not focus on, or advertise or intend to do
business in, California].)
We began our analysis
with a review of the superior court's minute order wherein the court found that
Sukumar and SCSRA did not carry their burden of proof in showing that SRL
purposely availed itself of the forum benefits of California. The court listed several undisputed facts
bearing on this issue. Specifically, the
court found SRL: never registered to do
business in California; never designated an agent for service of process in
California; never had any financial accounts in California; never owned, rented
or leased any real property in California; never had offices in California;
never contracted with anyone in California; did not market or advertise its
products in the US (except through an apparently noninteractive website and
through independent contractors); did not have employees in the United States,
only a distributor in Kansas; sold its products in such a manner as to have the
distributors take possession of the product in Italy, and distributors arranged
for all shipping to the United States; and was never paid directly by Sukumar
for any product. Sukumar and SCSRA do
not dispute these facts, and we are satisfied that substantial evidence
supports these findings.
The court also found
SRL had "made every effort to distance itself legally from the California
market." It based this finding on
four factual findings. First, SRL was
careful to refrain from directly signing any contracts with California or other
United States residents. Substantial
evidence supports this finding. The purchase
contract was between Sukumar and Health Tech only. Both Sukumar and Health Tech signed an
addendum that appears to be intended to bind SRL by the terms of the purchase
agreement, but there was no evidence that SRL ever signed the addendum or any other
contract with a California resident.
Second, SRL arranged
for an independent distributor to serve any customers in the United States,
including Sukumar. This fact also is
supported by substantial evidence. It is
undisputed that SRL entered into a distributor agreement with Health Tech in
January 2004.
Sukumar, however,
contends Health Tech's president, Eggers, encouraged Sukumar to purchase SRL
products prior to the distributor agreement being signed, and thus, Eggers's
acts should be attributable to SRL for the purposes of establishing specific
jurisdiction. We agree with Sukumar that
activities taken on behalf of a defendant may be attributed to the defendant
for purposes of personal jurisdiction. (
Court (2008) 165 Cal.App.4th 969, 974 (Anglo
Irish Bank).) However, it must be
shown that the defendant purposefully directed those activities at the forum
state.
name="_ftnref7" title="">[7] (Ibid.) Here, Sukumar points to no evidence
indicating that SRL was directing Eggers's or Health Tech's activities in
California. At best, Sukumar presented
evidence that SRL provided Eggers with Sukumar's contact information. Other than this fact, there is nothing in the
record that would have compelled the superior court to find SRL was directing
Eggers's activities in California. And
Sukumar has not provided us with any authority that supports the conclusion
that a defendant directed a third party's activities in the forum state merely
by providing a potential customer's contact information. (See, e.g., Anglo Irish Bank, supra,
165 Cal.App.4th at p. 984 [defendant directed third party's contact with
investors in California because defendant specifically asked the third party to
meet with potential investors in California and defendant relied on third
party's expertise both in evaluating the prospective clients and in answering
questions about types of investments].)
No such analogous facts exist here.
Third, the superior
court found that SRL had distanced itself legally from the California market
because of the terms of the distributor agreement. Specifically, the distributor agreement
stated: (1) the distributor, based in
Kansas (Health Tech), had no authority to bind SRL; and (2) Italian law
governed the distributor agreement. We
agree with the court that the distributor agreement contained these terms. In addition, we note that the addendum to the
purchase agreement appeared to be aimed at these specific provisions of the
distributor agreement (although Sukumar claimed to have never read the
distributor agreement). Although both
Sukumar and Health Tech signed the addendum, there is no evidence that SRL
signed it. The existence of the
addendum, nevertheless, underscores the importance of the distributor agreement
in keeping SRL legally distanced from the California market. In other words, there is no reason Sukumar
would have wanted SRL to sign the addendum but for the existence of the terms
in the distributor agreement that prevented Health Tech from acting on SRL's
behalf.
Fourth, the court was
persuaded by the fact SRL was careful to require Health Tech to take possession
of any equipment in Italy thus making Health Tech responsible for shipping the
equipment to its customers in the United States. Again, substantial evidence supports the
court's factual finding.
Sukumar and SCSRA do
not challenge these findings, but instead, point to a number of
"contacts" they claim prove SRL purposely availed itself of the forum
benefits in California. For example,
Sukumar and SCSRA contend the May 2002 meeting, SRL's invitation to Stout to
train at its factory in Italy, and SRL's drawing of a diagram layout for
Sukumar's facility all satisfy the purposeful availment prong of the minimum
contacts test. We disagree. In making this argument, Sukumar and SCSRA
invite us to reweigh the evidence. We
cannot do so.
name="_ftnref8" title="">[8] (See Anderson
v. State Personnel Bd. (1980) 103 Cal.App.3d 242, 251; Maynard v. State Personnel Bd. (1977) 67 Cal.App.3d 233, 237.) Instead, we "view the evidence in the
light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor in accordance
with the standard of review so long adhered to by this court." (Jessup
Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) "The fact that it is possible to draw
some inference other than that drawn by the trier of fact is of no
consequence." (Ibid.)
All three of these
contacts involve disputed evidence.
Although the superior court did not make specific factual findings on
all of the evidence presented, it did find Sukumar's "evidence of
'purposeful availment' " "unpersuasive." As such, we resolve the disputed evidence in
favor of SRL (Malone v. Equitas
Reinsurance Ltd. (2000) 84 Cal.App.4th 1430, 1436), imply the necessary factual
findings to support the court's order granting SRL's motion, and review the
implied factual findings for substantial evidence (see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42,
58).
title="">[9] "We have no power to substitute our own
assessment of the facts for that of the trial court if substantial evidence
supports [its] finding. [Citation.] That is a trial court function, not one for
us as an appellate court." (
supra, 135 Cal.App.4th at pp. 113-114.)
The superior court
found that Taddese and Sanson attended the May 2002 meeting at Eggers's request
after they met with Eggers in Kansas to discuss distributor issues. The court also found that Taddese and Sanson
answered Sukumar's technical questions that Eggers was unable to answer. These findings are supported by substantial
evidence, specifically the declarations of both Taddese and Sanson. In addition, we imply the finding that the
court did not deem Sukumar's declaration regarding what occurred at the May
2002 meeting convincing.
In addition, Sukumar
and SCSRA mischaracterize the arrangement to have Stout trained at SRL's
factory in Italy. They claim that SRL
invited Stout to be trained. However,
the court found that Sukumar insisted that Stout be trained at SRL's factory in
Italy, and SRL simply agreed to the request.
This finding too is supported by substantial evidence as Taddese stated
in his declaration that "Sukumar wanted to have . . . Stout . . . trained
at the factory in Italy. . . . Eggers
assumed that could be arranged and I agreed and saw no reason why . . . Stout
could not visit [SRL's] factory."
Also, Sukumar and SCSCR
insist SRL's drawing of a diagram layout for Sukumar's facility showed
purposeful availment. The court disagreed,
finding SRL prepared the drawing at Eggers's request and as a service SRL
provided to distributors. Again, this
finding is supported by substantial evidence as Sanson testified as to this in
his declaration.
The court made
additional findings of fact that are all supported by substantial
evidence. It found that Taddese called
Sukumar in 1999 in response to an inquiry by Sukumar. The court also found Taddese sent Sukumar a
fax, manuals, marketing information, and price quotes in October 1999 in response
to Sukumar's request as well. Both these
findings are supported by substantial evidence.
In his declaration, Sukumar admitted he received a call from Taddese
"[a]s [he] pursued [SRL] equipment further" and Taddese told Sukumar
that he was calling him after he heard of Sukumar's interest in SRL's products
from SRL's distributor and Taddese wanted to know if there were any questions
he could answer. In addition, Taddese
stated in his declaration that he sent the fax and related materials to Sukumar
in response to his request.
Somewhat ignoring the
court's findings, Sukumar and SCSRA also emphasize additional contacts that
they claim prove SRL's purposeful availment.
We are not persuaded.
For example, Sukumar
and SCSRA assert SRL sent Sukumar two proposals in October 2003. As proof of these proposals, Sukumar and
SCSRA point to two one-page documents that contain SRL letterhead and list
equipment and prices. In his declaration,
Sukumar states the proposals are dated October 27, 2003 and "SRL recently
produced [the documents] to [his] attorneys in this case." The court did not make a specific factual
finding as to these two documents.
However, because it did not find that Sukumar and SCSRA proved
purposeful availment, we must imply factual findings to support the order. (See Fladeboe
v. American Isuzu Motors, Inc., supra,
150 Cal.App.4th at p. 58.) In addition,
as we note above, the court found Sukumar and SCSRA's evidence
"unpersuasive," which would include the alleged October 2003
proposals. Here, we are satisfied that
substantial evidence supports the implied findings that the alleged October
2003 proposals were never made directly from SRL to Sukumar.
Sukumar did not have
the proposals in his possession, but instead, admitted that SRL had recently
produced them in discovery to his attorneys.
SRL provided a declaration from Tomas Bilardo, an employee of SRL, who
stated the two October 2003 proposals were sent to Eggers for a perspective
order from Eggers's client, Sukumar.
Bilardo's testimony is buttressed by the actual proposals
themselves. Both proposals indicate a 25
percent discount SRL gave distributors, listed the price of the equipment in
Euros, and called for the equipment to be delivered in Italy.
In summary, we are
satisfied that substantial evidence supports the court's stated and implied
factual findings. We independently
conclude, based on these findings, Sukumar and SCSRA did not prove SRL
purposefully availed itself of forum benefits.
We agree with the superior court that SRL "made every effort to
divert any such benefits away from SRL directly to its distributor." Also, we agree with the court that SRL did
not seek out Sukumar, but instead, Sukumar "aggressively" pursued
SRL. Indeed, it appears from the record
that SRL's direct contacts in California, outside of those requested by Eggers
or Sukumar, consisted of appearing at a trade show at which it was looking for
potential distributors. We are aware
that there is undisputed evidence that SRL directly shipped spare parts to
Stout and another California business.
Without greater explanation, the delivery of these spare parts is
insufficient to give us pause. There is
nothing in the record showing that SRL derived significant income from shipping
these parts directly to California residents.
(See Bridgestone Corp. v. Superior
Court (2002) 99 Cal.App.4th 767, 777 ["We conclude that a
manufacturer's placement of goods in the stream of commerce with the
expectation that they will be purchased or used by consumers in California
indicates an intention to serve the California market 'directly or indirectly'
[citation] and constitutes purposeful availment if the income earned by the
manufacturer from sale or use of its product in California is
substantial."].) Also, as we discuss
below, Sukumar and SCSRA did not connect these contacts with the controversy
here.
In addition, we
conclude that neither Eggers's acts nor Health Tech's contacts in California
can be attributed to SRL for jurisdictional purposes because Sukumar and SCSRA
did not prove that SRL was directing Eggers's or Health Tech's actions in
California. Sukumar and SCSRA simply did
not prove purposeful availment.
Sukumar and SCSRA,
however, contend that this case is analogous to Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 664 (
SRL purposefully availed itself of forum benefits. We disagree.
In Secrest, the plaintiff was injured while operating a leveling
machine designed and manufactured by the defendant, an out-of-state
corporation. The defendant did not
maintain offices, employees, or property in California, and did not manufacture
the leveling machine in this state. (
The plaintiff's employer paid over $115,000 for the machine and took
delivery of it in Virginia, but the defendant sent an employee to California to
help install the machine. (
installed, the defendant sent spare parts to the plaintiff's employer and gave
advice on maintenance. (
Secrest,
supra, 33 Cal.3d 664 is not
instructive here. Secrest involves a claim for personal injury. Neither Sukumar nor SCSRA have alleged a
cause of action for personal injury. In
addition, the defendant in Secrest
sold the defective product to a California based company for use in
California. In contrast, SRL sold its
exercise equipment to Health Tech, which was based in Kansas. Although Sukumar argues that SRL assisted
Sukumar with the installation of its exercise equipment, we find the record
ambiguous on this point. Sukumar cites
to deposition testimony indicating that the deponent reviewed emails that were
exchanged between Stout and an SRL representative regarding installation of the
equipment at Sukumar's location. Sukumar
and SCSRA fail to cite to the actual emails in the record, and we are not aware
of the substance of those emails. In
addition, unlike the defendant in Secrest,
which sent an employee to California to help install the product, at most, SRL
apparently had email communications with Stout regarding installation. Simply put, Secrest, supra, 33 Cal.3d
664 is distinguishable from the instant action.
Also, during oral
argument, Sukumar and SCSRA's counsel stated that specific jurisdiction was
established simply because SRL used a distributor to sell SRL's product in
California and SRL knew its product would eventually be sold to a California
resident. Sukumar and SCSRA provide no authority for their urged bright line
rule. Our independent research has uncovered
none either. That said, we are aware
that in some product liability suits, purposeful availment also has been shown
when
the "sale or distribution of a product ' " 'arises from the
efforts of the manufacturer or distributor to serve, directly or indirectly,
the [forum state's] market for the
product.' " ' "
(People ex rel. Harris v. Native
Wholesale Supply Co. (2011) 196 Cal.App.4th 357, 362, italics omitted,
quoting Secrest, supra, 33 Cal.3d at p. 670.) This case, however, is not a product liability
suit as Sukumar has not claimed any injury from using SRL's products.
In summary, we
conclude, based on the superior court's stated and implied factual findings,
Sukumar and SCSRA have not proved that SRL purposeful availed itself of forum
benefits.
B. Arising Out of Forum Contacts
The second factor in
determining if specific jurisdiction exists is whether the controversy is
related to or arises out of the defendant's contacts with the forum. (
Here, the superior court found the controversy was not related to and
did not arise out of SRL's contacts with California. We agree.
Sukumar and SCSRA
insist the court erred because "SRL's contacts with California--directly
and through its distributor, Eggers--deal with its marketing, sale and
servicing of its exercise machines; Sukumar's lawsuit arises out of and is
related to those very contacts." We
are not persuaded.
Sukumar and SCSRA's
argument hinges on their version of the facts without regard to the court's
stated and implied factual findings. For
example, they attribute all of Eggers's acts to SRL for purposes of determining
jurisdiction. However, in asserting this
argument, Sukumar and SCSRA ignore the requirement that they bear the burden of
proving SRL was directing Eggers's actions.
(See Anglo Irish Bank,
carry their burden on this point.
Sukumar and SCSRA also
contend this matter is the same as Luberski,
Inc. v. Oleficio F.LLI Amato S.R.L. (2009) 171 Cal.App.4th 409 (
Cal.App.4th 1859. Both cases are
distinguishable. In addition, these
cases underscore the primary fault in Sukumar and SCSRA's argument: SRL never contracted directly with Sukumar or
any California company.
In Luberski, supra, 171
Cal.App.4th 409, the court found that the defendant, an Italian olive oil
company, was subject to specific jurisdiction in California. (Id.
at p. 412.) The defendant, however,
directly contracted with a California company for the sale of $406,000 in olive
oil and was required to ship the olive oil to California. (Id.
at p. 415.) The plaintiff brought
suit for breach of contract, money had and received, and fraud because it
claimed the defendant never shipped the olive oil. (Id.
at p. 412.)
Here, SRL did not enter
into a contract with Sukumar or SCSRA, and SRL did not ship its exercise
equipment to California. Indeed, the
only similarity between Luberski,
instant matter is that both defendants are based in Italy. Other than this insignificant likeness,
instant matter, and therefore is not instructive.
In As You Sow, supra, 50
Cal.App.4th 1859, the court found specific jurisdiction existed over an
out-of-state paint manufacturer who made direct sales to private distributors
in California on 16 separate occasions.
(Id. at p. 1869.) The defendant was sued based on the
allegations that it sold products containing cancer causing chemicals in
California and failed to provide adequate warnings. No analogous facts exist here. SRL contracted with a Kansas based
distributor. SRL did not make direct
sales with any company in California nor did it ship its products to California. SRL has not been sued for product
liability. As You Sow, supra, 50
Cal.App.4th 1859 therefore is distinguishable.
Here, all of Sukumar
and SCSRA's claims arise out of Sukumar's contract with Health Tech. It is undisputed that SRL was not a party to
this contract. In addition, the superior
court found that SRL's contacts with California were not for the purpose of
selling its products directly to California consumers, and that SRL did not
direct Eggers' or Health Tech's contacts with California.
supports these factual findings. In
light of these findings by the court, we agree that Sukumar and SCSRA did not
carry their burden of showing the controversy was related to SRL's contacts in
California.
name="_ftnref13" title="">[13]
IV
Sukumar and
SCSRA argue in the alternative that even if we determine SRL did not have
sufficient minimum contacts for the superior court to exercise personal
jurisdiction over SRL, SRL waived its jurisdictional challenge by engaging in
expansive discovery. Specifically,
Sukumar and SCSRA contend SRL's questioning of Sukumar during deposition of his
previous litigation experience waived any jurisdictional objection. We disagree.
A defendant
submits to the court's jurisdiction by making a general appearance in an
action. (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341 (
A general appearance is one in which the defendant participates in the
action in a manner which recognizes the court's jurisdiction. (Mansour
v. Superior Court (1995) 38 Cal.App.4th 1750, 1756 (Mansour).) If the defendant
raises an issue for resolution or seeks relief available only if the court has
jurisdiction over the defendant, then the appearance is a general one. (Id.
at pp. 1756-1757.) In general, propounding
discovery constitutes a general appearance.
(Roy, supra, at p. 341.)
However, a
motion to quash under Code of Civil Procedure section 418.10 must be supported
by evidence on the issue of the defendant's contacts with the state. (School
Dist. Of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126,
1131.) The parties thus are permitted to
conduct discovery on the issue prior to the hearing on the motion. (See id.
at p. 1132.) The defendant's conduct of
discovery on the jurisdictional issue, rather than the merits of the case, is
not considered a general appearance in the action. (Roy,
supra, 127 Cal.App.4th at p. 345, fn.
9; see Mansour, supra, 38 Cal.App.4th at p. 1757.)
Here,
Sukumar and SCSRA contend SRL's lines of inquiry at Sukumar's deposition
involved the merits of the suit because the questions concerned the number of
lawsuits to which Sukumar had been a party, the number of lawsuits in which
Sukumar was a plaintiff, the nature of the prior disputes, the identity of the
defendants in those disputes, and the nature of the product involved in those
disputes. The only authority Sukumar and
SCSRA provide to support their position is Factor
Health Management v. Superior Court (2005) 132 Cal.App.4th 246 (
Health, however, is distinguishable from the instant action.
In
their jurisdictional challenge because they sought discovery to oppose a motion
for preliminary injunction. Because a
motion for a preliminary injunction involves a determination related to the
merits of the case, the court concluded the defendants' discovery would
necessarily address the merits and was beyond what discovery a defendant would
typically seek in moving to quash under Code of Civil Procedure section
418.10. (Factor Health, supra, at
p. 251.)
Here,
unlike the defendant in Factor Health,
supra, 132 Cal.App.4th 246, SRL was
not attempting to engage in discovery involving the merits of the dispute. As we discuss above, the third factor of
establishing specific jurisdiction involves the evaluation of whether the
assertion of jurisdiction would comport with fair play and substantial
justice. (CenterPoint, supra, 157
Cal.App.4th at p. 1117.) As such, it
logically follows that SRL would explore Sukumar's previous litigation
experience. Moreover, Sukumar's
litigation history could have a bearing on his credibility in this matter as it
appears Sukumar has had some familiarity in suing manufacturers of exercise equipment. Finally, we agree with SRL that its
questioning of Sukumar's previous litigation is related to the background
information that Sukumar supplied in his declaration opposing the motion to
quash. Sukumar discusses his motivation
for seeking "non-traditional techniques beyond the then realm of the
allopathic medical community in the United States" to help his father
rehabilitate. Sukumar's litigation with
other companies that manufactured exercise equipment during his search would be
relevant to his motivation. We see no
question that clearly crossed the line into merits only discovery that would
have resulted in SRL's waiver of its jurisdictional question.
Sukumar and
SCSRA also contend the superior court did not rule on their waiver argument so we
must remand this issue t
| Description | Ponani Sukumar entered into a contract with Health Tech Resources, Inc. dba Impact Fitness Systems (Health Tech) whereby Sukumar purchased certain exercise equipment. The equipment was manufactured in Italy by Air Machine Com SRL, an Italian company (SRL). Because he believed the exercise equipment was defective, Sukumar, along with his physical rehabilitation clinic Southern California Stroke Rehabilitation Associates (SCSRA) brought suit against multiple defendants,[1] including Health Tech, Thomas Eggers (Health Tech's president and owner), and SRL. SRL moved to quash service of summons because of a lack of personal jurisdiction, and the court granted the motion. Sukumar and SCSRA appeal, arguing the court erred in finding that SRL was not subject to personal jurisdiction in California. Specifically, they argue SRL purposefully availed itself of the benefits of doing business in California, their suit relates to SRL's contacts with California, and SRL did not show the superior court's exercise of jurisdiction in this matter would be unreasonable. In the alternative, Sukumar and SCSRA contend SRL waived its jurisdictional objection by engaging in discovery unrelated to jurisdictional issues. We affirm. |
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