Opinion
D073082
03-27-2018
COMERCIALIZADORA TRAVEL ADVISORY, S.A. DE C.V. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SERGE NAYSHTUT, Real Party in Interest.
Phillip H. Dyson for Petitioners. Daniel A. Kaplan for Real Party in Interest.
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:
The petition for rehearing is denied.
The opinion filed March 27, 2018 is modified as follows:
Page 18, first full paragraph, following the citation to "Pavlovich, supra, 29 Cal.4th 262, 273-274 [maintenance of passive website was not evidence of a defendant's tortious conduct aimed at or targeting California residents].)," and before the words "[u]nder these circumstances . . . ," a new paragraph is added:
In Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1065-1069, the court ruled that California specific jurisdiction could be exercised over a Nevada defendant, a hotel company, because the hotel not only made telephone and e-mail contacts with California residents, but was shown to have purposefully, successfully and intensively solicited new Nevada business from California residents. Here, Holiday did not begin contacts with Plaintiff until he had already signed up for his membership with Advisory, in Mexico. Plaintiff claims Advisory misled him at that time, but Holiday's follow up contacts with him were allegedly more limited. The harm Plaintiff has alleged does not relate directly to the content of Holiday's California directed activities. (Id. at pp. 1069-1070.)The paragraph continues with: "Under these circumstances . . . ."
THERE IS NO CHANGE IN JUDGMENT.
BENKE, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00083815-CU-BC-CTL) PROCEEDINGS in mandate after the superior court denied motion to quash. Joan M. Lewis, Judge. Petition granted. Phillip H. Dyson for Petitioners. Daniel A. Kaplan for Real Party in Interest.
In this writ proceeding, petitioners Comercializadora Travel Advisory, S.A. de C.V. (Advisory), and a related company Holiday Club Management de Mexico, S.A. de C.V. (Holiday; sometimes together Petitioners), challenge the trial court's denial of their motion to quash the service of summons and complaint of plaintiff and real party in interest Serge Nayshtut (Plaintiff). Petitioners, who are Mexican corporations, argue the undisputed facts demonstrate that California lacks jurisdiction over either of them to adjudicate Plaintiff's claims of breach of contract and misrepresentations concerning a timeshare membership agreement he entered into with Advisory in Mexico, for which Holiday provides customer service. (Code Civ. Proc., § 418.10; all further statutory references are to this code unless noted.)
Upon the filing of the petition, we stayed the proceedings below, solicited a response, and issued an order to show cause on December 7, 2017. We now grant the writ petition, on the undisputed evidence that neither Advisory nor Holiday purposefully conducted activities in California that gave rise to Plaintiff's claims. The gist of his lawsuit is that while he was on vacation in Mexico, they fraudulently induced him to sign a timeshare membership agreement governed by Mexican law and requiring resolution of disputes in Mexico. Under the circumstances disclosed by the record, there is no sufficient basis to permit a California court to exercise jurisdiction in this matter, and the service of summons and complaint should have been quashed as to both petitioners for lack of personal jurisdiction.
I
BACKGROUND
Advisory sells vacation club membership packages all over the world and has several properties in Mexico, as well as in California. Plaintiff, a California resident, was visiting one in Mexico when he signed Advisory's membership agreement (the agreement) and a promissory note there. The agreement includes a term stating that for the interpretation, compliance and execution of the agreement, the parties "shall expressly submit to the laws of Federal District [of the Mexican Republic] and to the competence of the Federal Consumer Attorney's Office in administrative procedures and to the Courts of the Federal District." The same paragraph in the agreement states, in a somewhat incomplete fashion, that the signer waives the benefits of any other law or legislation.
Paragraph 18 of the agreement, in addition to identifying the laws and courts of "Federal District" of the Mexican Republic as governing the interpretation of the agreement, includes the following incomplete (and apparently translated) sentences within the paragraph: "Expressly waiving the benefit of any other law or legislation that have or will acquire under its present or future domicile or for any other reason generating competition. Expressly waiving the benefit of any other law or legislation that have or will acquire under its present or future domicile or for any other reason generating competition."
In the promissory note, Plaintiff agreed to make periodic payments on the membership price, obligating him to about $35,000 in total. The note states that it would be governed and construed according to the applicable laws of the state of Arizona, and that Plaintiff submitted to the jurisdiction of the Arizona courts. At the time of signing, Petitioners told him that they would mail written information to his home in California so that he would not have to travel back with a heavy box of documents that set forth the membership terms and conditions. Plaintiff later reviewed the documents and alleges there were serious discrepancies between what he was promised by the sales team and the agreement documents he received (e.g., an information cover letter, a confirming document, a resort guide, and operating rules and regulations). He started contacting Holiday about his concerns, through months of calls and e-mails, but received no resolution.
Plaintiff filed his complaint in San Diego Superior Court, alleging causes of action for breach of contract, negligent misrepresentation, intentional misrepresentation, violations of the Consumers Legal Remedies Act, civil conspiracy, money had and received, and intentional infliction of emotional distress. Compensatory and punitive damages were sought, along with restitution, declaratory and injunctive relief, interest, costs and attorney fees.
The Consumers Legal Remedies Act (CRLA) is found in Civil Code section 1750 et seq.
Following preliminary discovery on jurisdictional matters, Advisory and Holiday specially appeared in the superior court to move to quash the service of summons for lack of personal jurisdiction. (§ 418.10, subd. (a)(1).) In the alternative, the motion requested a stay or dismissal of the action on the ground of forum non conveniens. Petitioners contended they had no requisite minimum contacts with California to support the trial court's assertion of personal jurisdiction over them because: (1) they are Mexican corporations with headquarters in Mexico; (2) Plaintiff bought the timeshare membership in Mexico; (3) the agreement states it is governed by Mexican law; (4) they are not licensed to do business in California, do not solicit business here, and have no facilities here; (5) their only contacts with Plaintiff while he was in California were Holiday's mailing of membership documents to him and contacting him several times by telephone and e-mail regarding his membership; and (6) there was no substantial connection between their limited contacts with California and his claims for relief.
Advisory and Holiday further argued the trial court's exercise of jurisdiction over them would be unreasonable because they are Mexican corporations, most of the witnesses reside in Mexico, and Mexico has a greater interest in the dispute than does California. Advisory and Holiday supported their motion with a declaration from their general counsel, who stated Advisory sells timeshare memberships in Mexico as a licensee of a Swiss corporation called Royal Holiday Club. Holiday then provides customer service and reservations for accommodations to members of the club. Neither Advisory nor Holiday has any facilities, employees, or assets in California, and neither entity conducts business here.
Advisory and Holiday made an evidentiary showing by submitting a copy of the agreement Plaintiff had signed, as well as his promissory note. The agreement mentions the club's operating rules, which allow the purchaser the right to purchase additional vacation credits and to make special reservations with them, by calling a Mexican telephone number, accessing an Internet website, or visiting Advisory's offices in Mexico.
In the promissory note, Plaintiff is directed to make payments by check to Advisory, and mail them to Concord Servicing Corporation (Concord) in Scottsdale, Arizona. As an Arizona loan servicing company, Concord manages the billing, payment processing, and account collections for Petitioners' U.S. customers. Advisory does not transmit any communications to purchasers.
Plaintiff opposed the motion to quash, arguing that both Advisory and Holiday had sufficient contacts with California to support the trial court's exercise of personal jurisdiction over them. They sell and service timeshare memberships to California residents, and therefore arguably: (1) establish long term obligations with those residents; (2) regularly contact such residents through advertisements and communications regarding travel and lodging arrangements; (3) derive substantial financial benefits from those persons by collecting membership installment payments and annual dues; and (4) may cause harm in California.
Plaintiff thus argued his claims for relief were substantially related to the contacts that Advisory and Holiday have with California, because their fraudulent inducement and breach of contract caused him harm in California, upon their refusal to provide benefits he was promised and taking of actions to collect money owed on the agreement. He further contended the trial court's exercise of jurisdiction was reasonable because the litigation relates to the sales and marketing activities of Advisory and Holiday in California, many witnesses reside in California, he may have no damages remedy in Mexico, the burden on Advisory and Holiday of litigating in California would not be great, and California has an interest in providing a forum for its residents.
Plaintiff disagrees with Petitioners that the written opinion they lodged in support of the motion, by a Mexican court interpreting the agreement, indicates that Mexico is a proper forum that could provide adequate remedies, either in court or administratively. --------
In his opposition, Plaintiff submitted a declaration describing his purchase of the timeshare membership, his receipt in the mail of documents about it, his payments made and the alleged breaches and misrepresentations by Advisory and Holiday. He gave details of the telephone calls and e-mails with Holiday in which he attempted to resolve his complaints concerning the timeshare membership, and described the severe emotional distress he suffered when Concord performed debt collection services for Advisory and made negative reports about his credit.
Plaintiff submitted interrogatory responses from Advisory stating it sold approximately 594 timeshare memberships in Mexico to persons it knew resided in California, and 152 of them had associated promissory notes. Advisory uses Concord to collect payments from members who reside in California, and does not mail contracts or transmit other communications to members in California. Plaintiff also submitted documents Advisory had produced in discovery, such as advertisements and notices sent to timeshare members in California, and an excerpt from a "Royal Holiday" website that featured timeshare properties in California.
With respect to the role of Concord, Plaintiff submitted a copy of the collection agreement between Advisory and Concord, which identified Concord as an Arizona corporation with an address there, and appointed Concord as Advisory's "collection agent" to process payments from Advisory's members and to deposit them in a bank in Arizona.
Plaintiff also submitted interrogatory responses from Holiday, stating it communicates with timeshare members in California by mail, telephone, fax, and e-mail; its "communications typically concern a welcome call to all new members and answering their questions about the use of timeshares, including destinations, promotions, reservations, fees and complaints." Holiday arranges vacations for timeshare members, transmits travel documents to them, and collects money from them via online credit card payments, mailed checks, and wire transfers. Holiday maintains an English language website offering information and booking for Advisory's properties.
In reply to the opposition filed by Plaintiff, Advisory and Holiday briefed the issue of whether the agreement's forum selection clause served to show that the parties had an intent to confine their business dealings to Mexico. (§ 418.10, subd. (a)(2); see fn. 1, ante.) Their moving papers had sought to stay or dismiss the action for forum non conveniens, but without extensive explanation or emphasis on forum selection.
Plaintiff filed surreply papers, objecting to new issues being raised at the reply stage. Plaintiff claimed that Petitioners had erroneously equated the bases they gave for their motion (such as forum non conveniens) with the newly argued concept of enforcement of a forum selection clause. (See Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Ca1.3d 491, 495 [forum selection clause enforceability followed modern trend].) Petitioners, in turn, objected to the filing of the surreply papers.
After a hearing, the trial court denied the motion to quash. Initially, the court ruled that the communications Holiday had with California timeshare members concerning use of their memberships constituted sufficient minimum contacts to subject Holiday to personal jurisdiction in California. With respect to the role of Advisory, the court noted that its contacts with California were "more tenuous," but concluded that the collection activities of its agent Concord could be attributed to Advisory for jurisdictional purposes and were sufficient for the court to assert jurisdiction over Advisory.
The minute order distinguished between the forum non conveniens arguments and the forum selection clause in the agreement, and set another hearing solely to consider whether the forum selection clause, as briefed in the reply papers and the surreply, was enforceable. However, this court's stay order issued November 17, 2017, together with the order to show cause, has presumably precluded that hearing from going forward.
II
APPLICABLE STANDARDS
"A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (§ 410.10.) "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.]" [Citation.]' " (CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1117 (CenterPoint).) "Minimum contacts" may support either general or specific jurisdiction. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.)
Writ review is the only way to obtain appellate review of an order denying a motion to quash service of summons for lack of personal jurisdiction. (§ 418.10, subd. (c); McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 256-257, fn. 4.) When a defendant conducts discovery on the jurisdictional issue, rather than the merits of the case, it is not considered a general appearance in the action. (Roy v. Superior Court of County of San Bernardino (2005) 127 Cal.App.4th 337, 345, fn. 9.) After this adverse ruling, Advisory and Holiday have no adequate remedy in the ordinary course of law, a factor supporting relief by writ of mandate. (§ 1086; Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1274.)
"When a nonresident defendant challenges personal jurisdiction, the plaintiff must prove, by a preponderance 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." (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.)
Plaintiff contends that the relevant evidence produced in discovery on the jurisdictional questions remains in dispute, and therefore this court must accept the trial court's resolution of factual issues, where supported by substantial evidence. (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266-267.) Petitioners, on the other hand, argue that the evidence of jurisdictional facts is not in conflict, and this court must independently review the trial court's decision. (Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal.App.4th 1430, 1436.) As to each of these alternative grounds for the assertion of personal jurisdiction, general or specific, we agree with Petitioners that no conflict in the evidence exists. The application of jurisdictional criteria to a given set of facts presents questions of law and we independently review the record. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 273 (Pavlovich).)
III
APPLICATION OF RULES
A. No Basis For General Jurisdiction Shown
Plaintiff initially opposes the petition on grounds that both Petitioners have the kind of systematic and continuous contacts with the state of California, through their numerous California customers, that should properly subject them to the superior court's general jurisdiction.
Plaintiff only vaguely argues that general jurisdiction applies, and the record does not support any such assertion. To satisfy the constitutional requirements of due process of law, a nonresident defendant's contacts with the forum must be so continuous and systematic as to render it essentially at home there and therefore subject to general or all-purpose jurisdiction. (Vons Companies, Inc. v. Seabest Foods Inc. (1996) 14 Cal.4th 434, 446 (Vons).) Petitioners showed the opposite, that they have refrained from establishing any substantial, continuous contacts with California. They do not have any facilities, employees, or assets in California, and do not conduct business here. The maintenance of this action in California, on the basis of general jurisdiction, would offend " 'traditional notions of fair play and substantial justice.' " (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.)
B. Specific Jurisdiction Criteria
Plaintiff more strongly argues that each Petitioner has established the type and degree of contacts with California that should allow them to be subjected to specific jurisdiction here. Where a nonresident defendant's contacts with the forum are not so continuous and systematic as to render it essentially at home there and therefore subject to general or all-purpose jurisdiction, the forum may assert jurisdiction only if the defendant has purposefully availed itself of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws, and if the controversy relates to the defendant's activities within the forum. (Daimler AG v. Bauman (2014) 571 U.S. 117, ___ [134 S.Ct. 746, 761] (Daimler); Hanson v. Denckla (1958) 357 U.S. 235, 253 (Hanson).) Such "specific jurisdiction" thus "depends on an 'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." (Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 919.) "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on "the relationship among the defendant, the forum, and the litigation." ' " (Walden v. Fiore (2014) 571 U.S. 117, ___ [134 S.Ct. 1115, 1121] (Walden).) This "relationship must arise out of contacts that the 'defendant himself' creates with the forum State"; and what matters are "the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." (Id. at p. 1122.)
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." (CenterPoint, supra, 157 Cal.App.4th at p. 1117, italics omitted; Helicopteros Nacionales de Columbia v. Hall (1984) 466 U.S. 404, 414 [in determining whether specific jurisdiction exists, courts generally look to the relationship among the defendant, the forum, and the litigation].)
C. Advisory; Agency Issue Regarding Concord
Plaintiff relies on Advisory's entry into long term contracts with people who reside in California, and its collection of contractual payments from them, to contend Advisory purposefully availed itself of the benefits of doing business in California. Specific jurisdiction on that basis would be justified if Advisory "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, supra, 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, supra, 29 Cal.4th at p. 269.) Courts look to the "nature and quality of the activity in the forum state," not the quantity of a defendant's contacts, when determining whether a defendant is subject to specific jurisdiction in a forum. (See e.g., As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859, 1869.) A corporation can "purposefully avail itself of a forum by directing its agents or distributors to take action there." (Daimler, supra, 134 S.Ct. 746, 759, fn. 13.) Even a single act by the defendant may create a substantial contact with the forum. (See McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 221-223 [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 her payments, was a sufficient minimum contact to subject defendant to California specific jurisdiction although the defendant did not solicit business in California].)
In assessing the contract terms and surrounding circumstances to determine if a defendant has purposefully established minimum contacts in California, the courts consider factors such as prior negotiations, contemplated future consequences, the parties' course of dealings, and the contract's choice-of-law provision. (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907.) The inquiry is whether the defendant undertook some type of affirmative conduct allowing or promoting the transaction of California business. (Ibid.) The existence of a contract with an out-of-state party does not automatically establish purposeful availment in the other party's home forum. (Ibid.; Vons, supra, 14 Cal.4th at p. 450; see Rocklin De Mexico, S. A. v. Superior Court (1984) 157 Cal.App.3d 91, 97, fn. 7 [sufficient contacts could support personal jurisdiction in a contract case if, e.g., performance by either party in the forum was required, or where the last act necessary for contract formation occurred within forum].)
Plaintiff has not shown that Advisory itself took any such action to create its own contacts with California. (Walden, supra, 134 S.Ct. 1115, 1121-1122.) Even considering that Advisory retained Concord, pursuant to a separate collection agreement, to assist it in receiving and processing payments in Arizona, from Plaintiff or other California residents, that factor does not show Concord took any action in California at the direction of Advisory. The promissory note specifies that the signer submits himself to the jurisdiction of the Arizona courts. Concord's participation is insufficient to subject Advisory to jurisdiction in California. (See Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1321 [nonresident defendant's acceptance of contract payments from California residents insufficient to subject defendant to jurisdiction in California].) There is no showing that Advisory purposefully and voluntarily directed its activities toward the forum so that it should expect, by virtue of the benefit it receives, to be subject to the court's jurisdiction based on its contacts with the forum. (Helicopteros Nacionales de Columbia v. Hall, supra, 466 U.S. at pp. 414-415.)
On the second element of the test, Plaintiff argues that his action is related to or arises out of Advisory's forum contacts, such that there is "a substantial connection between the forum contacts and the plaintiff's claim." (Vons, supra, 14 Cal.4th at p. 452, italics omitted; CenterPoint, supra, 157 Cal.App.4th at p. 1117.) He points to the emotional distress harm he was caused in California, when Advisory's agent Concord made negative credit reports against him. However, Plaintiff submitted no evidence Concord did anything in California to make those reports and "mere injury to a forum resident is not a sufficient connection to the forum." (Walden, supra, 134 S.Ct. at p. 1125.) Neither has he shown that Advisory took actions on its own behalf to create a continuing obligation to California residents or any substantial connection with California. (Elkman v. National States Ins. Co., supra, 173 Cal.App.4th 1305, 1318.)
With respect to the third requirement for the exercise of specific personal jurisdiction, a court must consider whether the exercise of jurisdiction, according to the other criteria, would be fair and reasonable so as to satisfy due process concerns. Relevant factors include (1) the burden on the defendant of defending an action in the forum, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining relief, (4) the interstate [or international] judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the states' or nations' shared interest in furthering fundamental substantive social policies. (Anglo Irish Bank Corp., PLC v. Superior Court (2008) 165 Cal.App.4th 969, 979.)
The undisputed facts were that Plaintiff and Advisory negotiated and executed the agreement and related promissory note in Mexico. The main future consequences contemplated by the agreement, together with the note, included Plaintiff making payments to Advisory through Concord, its Arizona agent, and being able to contact Advisory in Mexico to reserve a timeshare unit using additional vacation credits. Advisory sent no contract documents or other communications to Plaintiff in California. Under these circumstances, California does not have a demonstrably strong interest in providing its residents a forum for resolution of this dispute. (Goehring v. Superior Court, supra, 62 Cal.App.4th at p. 907.)
Finally, the Advisory agreement contained a forum selection clause, which might be viewed as supporting the parties' intentions, as of the time of contracting, that Mexico would be the appropriate forum for resolving any disputes. The trial court did not rule upon that issue, instead continuing the matter for further proceedings as necessary. We need not rely on either the lodged Mexican court opinion interpreting the agreement or the forum selection clause to resolve this petition. (See fn. 3, ante.) Forum selection is a moot point, since the other criteria developed for specific jurisdiction inquiries entirely disfavor California jurisdiction. (See Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623, 1633 [forum selection clause enforcement is an offshoot of inconvenient forum principles].) As the trial court recognized, Advisory's contacts with California are even "more tenuous" than those of Holiday, as next discussed.
D. Holiday
Holiday maintains contacts, in its capacity as Advisory's customer service agent, with California residents by mail, telephone, fax, e-mail, and Internet. Plaintiff argues his lawsuit arises in part out of those contacts. Like Advisory, Holiday is a Mexican corporation, headquartered in Mexico, that has not been shown to conduct business in California. Its activities in mailing the agreement and related documents to Plaintiff in California and participating in telephone calls and e-mail exchanges he initiated, to try to resolve his complaints of breaches of and misrepresentations about the timeshare membership agreement, are insufficient to subject Holiday to the jurisdiction of California courts. (Peterson v. Kennedy (9th Cir. 1985) 771 F.2d 1244, 1262 ["ordinarily 'use of the mails, telephone, or other international communications simply do[es] not qualify as purposeful activity invoking the benefits and protection of the [forum] state' "]; Rocklin De Mexico, S. A. v. Superior Court, supra, 157 Cal.App.3d 91, 97 [" 'Affiliations with the forum that involve the defendant but are instituted by another person do not meet the constitutional minimum.' "].)
Moreover, "there must be a substantial connection between the forum contacts and the plaintiff's claim to warrant the exercise of specific jurisdiction." (Vons, supra, 14 Cal.4th at p. 452; italics omitted.) Plaintiff's claim that while he was in Mexico, Advisory representatives fraudulently induced him to sign the agreement, to be governed by Mexican law and requiring resolution of disputes in Mexico, do not bear a substantial connection to the communications he had with Holiday. The same is true of his arguments that he has not received all the benefits he was promised by Advisory, and suffered severe emotional distress when Concord made negative credit reports about him. Holiday has not been shown to have done anything in California to invoke the benefits and protections of California law. (Hanson, supra, 357 U.S. at p. 253; see Pavlovich, supra, 29 Cal.4th 262, 273-274 [maintenance of passive website was not evidence of a defendant's tortious conduct aimed at or targeting California residents].) Under these circumstances, it would be unreasonable to require Holiday to litigate in California. (BBA Aviation PLC v. Superior Court, supra, 190 Cal.App.4th 421, 428-429.)
Where "the trial court's order is both clearly erroneous as a matter of law and substantially prejudices petitioner[s'] case," writ relief will issue. (Omaha Indemnity Co. v. Superior Court, supra, 209 Cal.App.3d at pp. 1273-1274.) The trial court plainly erred in finding Advisory and Holiday had sufficient contacts with California to support the exercise of personal jurisdiction over them on a general or specific basis.
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its order of October 20, 2017, and enter an order granting the motion of Petitioners to quash the service of summons and complaint. Petitioners are entitled to recover their costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. NARES, J.