Gateway Garp, LLC vs. Tmh Sc, LLC

Motion to Quash Service of Summons

Cal. Super. - 4th Dist.September 2, 2016

E E O O 0 0 3 10 11 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 John D. Alessio (Bar No. 174900) E-mail: john.alessio@procopio.com James Joseph (Bar No. 309883) E-mail: james.joseph(@procopio.com PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 525 B Street, Suite 2200 San Diego, CA 92101 Telephone: 619.238.1900 Facsimile: 619.235.0398 Attorney for Defendant Allison Fuller SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE GATEWAY GARP, LLC, Case No. 30-2016-00873226-CU-BC-CIJC Plaintiff, Reservation No. 72473853 V. DEFENDANT ALLISON FULLER’S MOTION TO QUASH FOR LACK OF TMH SC, LLC; THE MEAT HOUSE-MISSION PERSONAL JURISDICTION VIEJO, LLC; MEAT HOUSE FRANCHISING, LLC; ROBERT HAGOPIAN; DANIELLE Date: January 19, 2017 HAGOPIAN; BRIAN SMITH; JAROSIAUA Time: 1:30 p.m. SMITH; RICHARD FULLER, JR.; ALLISON Dept.: C18 FULLER; and DOES 1-10, inclusive, Judge: Hon. Theodore Howard Defendants. Complaint Filed: September 2, 2016 Defendant Allison Fuller (hereinafter, “A. Fuller”) hereby submits the Motion to Quash Service of the Summons of the Complaint filed by Plaintiff Gateway Garp, LLC (“Plaintiff”). I. INTRODUCTION Plaintiff is the landlord suing multiple defendants whom are allegedly tenants or guarantors on the lease. This defendant, A. Fuller,is neither. A. Fuller has lived on the east coast for the last 26 years. Unfortunately, A. Fuller has been dragged into this lawsuit based solely on her purported signature on the Guaranty of Lease for the Meat House. (See Complaint at § 21; Complaint, Exhibit D.) A. Fuller brings this motion as her signature on the guaranty was placed on that document by her husband without her knowledge or consent. A Fuller has no contacts with California sufficient to compel jurisdiction. Contrary to the Complaint, A. Fuller is not a resident of California. A. Fuller has absolutely no involvement with DEFENDANT ALLISON FULLER’S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONCASE NO. 30-2016-00873226-CU-BC-CJC ES N O O 0 9 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the tenant business, the Meat House — Mission Viejo, LLC (“Meat House™). Her primary contacts with the State of California are for infrequent and short vacations during which she would stay in hotels. This Court should quash the service of summons on A. Fuller for lack personaljurisdiction. To do otherwise would discourage out ofstate residents from ever stepping foot in California. Plaintiff bears the burden of alleging and showing this California court has general jurisdiction or special jurisdiction over A. Fuller. This has not and cannot be done as A. Fuller does not have “extensive” or “continuous” contacts with California for general jurisdiction. Plaintiff has not and cannot show that this Court has specific jurisdiction over A. Fuller since she was never involved with the California business that is the focus of this instant matter. Since this Court can judge the merits of the complaint when determining personaljurisdiction, this Court should consider the attached declarations and grant A. Fuller’s Motion to Quash. IL. FACTS A. Fuller has been a resident of the State of Pennsylvania since 1990. (Declaration of A. Fullerfiled and served concurrently herewith [“A. Fuller Decl.”] at 42.) She has always lived in the Northeast region of the United States of America. (A. Fuller Decl. at § 2.) She is currently a full-time employee of a Pennsylvania company entitled VPMR, formerly Verispan Primary Market Research Division, where she performs market research and client management for the pharmaceutical and healthcare industries. She has been employed by this company since 2007. (A. Fuller Decl. at § 2.) A. Fuller has never been a resident of, nor has she lived in California. (A. Fuller Decl. at 3.) A. Fuller has never owned property or assets in California. (A. Fuller Decl. at § 3.) A. Fuller maintains only one license to drive a vehicle and that is in the state of Pennsylvania. (A. Fuller Decl. at 12.) A. Fuller has never owned or operated a business in California. (A. Fuller Decl. at 3.) Occasionally she visits California primarily for short vacations during which she stays in hotels. (A. Fuller Decl. at § 3.) A. Fuller has never met with nor communicated with the Plaintiff or with anyone purporting to be an agent of Plaintiff. (A. Fuller Decl. at § 5.) A. Fuller never entered into 2 DEFENDANT ALLISON FULLER’S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONDOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CJC O O 0 0 9 O N n n B e W N r o n N N o N o r o N o N o n N N o So nd — — f t p— t — — — — — © ~ 1 a N w n + S W w n N — O o O c o ~ ~ a N w n I w l n o — o O business with or made any commitments with or related to the Meat House operation. (A. Fuller Decl. at { 4-5.) Significantly, A. Fuller never signed the Guaranty of Lease which is grounds for jurisdiction of A. Fuller in this matter. R. Fuller, her husband, signed her name to that guarantee without her consent or approval. (A. Fuller Decl. at § 8.) R. Fuller admits that A. Fuller did not sign the Guaranty of Lease nor was she aware ofthe existence of the Guaranty of Lease until the Meat House ceased operations. (Declaration of R. Fuller, Jr. filed and served concurrently herewith [“R. Fuller Decl.”] at § 7-8.) A. Fuller never knew her name was signed onto the Guaranty nor did she approve or ratify that act. (A. Fuller Decl. at § 5, 8.) To the contrary, A. Fuller clearly let R. Fuller know that she wanted nothing to do with his business related activities in California. (A. Fuller Decl. at § 4.) A. Fuller had never seen this Guaranty of Lease with her signature placed thereon until she was served with the complaint in this action. (A. Fuller Decl. at § 6.) III. ARGUMENT A. Constitutional Limits On The Exercise Of Personal Jurisdiction. A California court may only exercise personal jurisdiction over a nonresident defendant to the extent allowed underthe state and federal Constitutions. (Code Civ. Proc. § 410.10.) The exercise of personal jurisdiction is constitutionally permissible only in those circumstances where the defendant has sufficient “minimum contacts” with the state so that the exercise ofjurisdiction Ab]“does not offend ‘traditional notions of fair play and substantial justice.’ (/nternational Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) A defendant’s contact with the forum state must be such that the defendant has had “fair warning” thatits activities might subjectit to personal jurisdiction in the state. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472; accord World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297.) “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.” * (Calder v. Jones (1984) 465 U.S. 783, 788.) There are two types of personaljurisdiction: General and specific. A defendant that has substantial, continuous, and systematic contacts with the forum state is subject to general jurisdiction on any cause of action. (Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445-446.) 3 DEFENDANT ALLISON FULLER'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION DOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CJC — O S W O 0 u N O N U n B A W N — p b e d e d p e A W N = 16 17 18 19 20 21 22 23 24 25 26 27 28 Specific jurisdiction, however, entails jurisdiction in an action that arises out of oris related to the defendant’s contacts with the forum state. (Helicopteros Nacionales de Columbia v. Hall (1984) 466 U.S. 408, 414, fn. 8.) Specific jurisdiction depends on the quality and nature ofthe defendant’s forum contacts in relation to the particular cause of action alleged. (Cornelison v. Chaney (1976) 16 Cal.3d 143, 147-148.) As the California Supreme Court noted in Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268, a court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to orarises out of the defendants contacts with the forum; and (3) the assertion of personal jurisdiction would comport with “fair play and substantial justice.” The first prong, purposeful availment, focuses on the intent of the defendant. That is, purposeful availment can exist only when the defendant has purposefully and voluntarily directed heractivities toward the forum so that she should expect, by virtue of the benefit she receives,to be subject to the court’s jurisdiction based on “[her] contacts with the forum.” Quoting from the United States Supreme Court’s decision in World Wide Volkswagen, the California Supreme Court in Pavlovich explained: Purposeful availment occurs where a nonresident defendant purposefully direct[s] [its] activities at residents of the forum, purposefully derive[s] benefits from its activities in the forum, creates a substantial connection with the forum, deliberately has engaged in significant activities with the forum, or has created continuing obligations between itself and residents of the forum. By limiting the scope of a forum’s jurisdiction in this manner, the purposeful availment requirement ensures that a defendant will not be hauled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts. Instead the defendant will be subject to personal jurisdiction if “it has clear notice thatit is subject to suit there, and can actto alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the state.” Pavlovich, supra, 29 Cal.4th at 269, quoting World-Wide Volkswagen, supra, 444 U.S. at 297. To satisfy the second prong for exercising specific jurisdiction, a controversy is related to or arises out of the defendant’s forum contacts ifthere is “a substantial connection” between the forum contacts and the plaintiff's claim. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452.) 4 DEFENDANT ALLISON FULLER'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONDOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CIJC O O 0 0 ~ ~ O N W n B s W N N D I N D N ) m = e t e t e d p e d e d p e d b e d e d p e d N = © O N B R A W N = O The third prong for exercising specific jurisdiction requires that the exercise ofjurisdiction must be fair and reasonable. To satisfy this prong, a court must consider: (1) the burden on the defendant in 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 judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the states’... shared interest in furthering fundamental substantive social policies. (Asahi Metal Indus. v. Superior Court (1987) 480 U.S. 102, 113-115.) B. Fuller Is Not Subject To The Court’s Jurisdiction. ke A. Fuller is not subject to general jurisdiction in California. In order for A. Fuller to be subject to the Court’s generaljurisdiction, her contacts with the state of California must be “extensive, wide-ranging, substantial, continuous and systematic”. (Helicopteros Nationales de Columbia, supra, 466 U.S. at 414-415.) Plaintiff cannot demonstrate that A. Fuller has “extensive, wide-ranging, substantial, continuous and systematic” contacts with California. Plaintiff alleges that A. Fuller “is a resident of California with his[sic] principal place of residence in Orange County, California.” (Complaint at § 10.) To the contrary, A. Fuller is a resident of Pennsylvania. (A. Fuller Decl. at § 2.) Her primary contacts with California are for short and infrequent vacations. (A. Fuller Decl. at § 3.) Given A. Fuller’s declaration, Plaintiff's unverified complaint is insufficient to demonstrate A. Fuller's residency. (Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710 [“an unverified complaint has no evidentiary value in determination of personal jurisdiction™].) 2: A. Fuller is not subject to specific jurisdiction in this action. In order to establish specific jurisdiction, Plaintiff must show that the causes of action asserted against A. Fuller arise out of: 1) an act she committed in California, 2) a transaction she consummated in California, or 3) that A. Fuller performed some other act by which she purposefully availed herself of the privilege of conducting activities within this state, thus invoking the benefits and protections of California law. (See Burger King, supra, 471 U.S. 474-475; Cornelison, supra, 16 Cal.3d at 148.) Plaintiff bears the burden to show thatjurisdiction exists. 5 DEFENDANT ALLISON FULLER'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONDOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CIC O O 0 9 O N U n B s W N N O N R O N N O N RN R N R em m e em es em es es e e © N A L BE L N = © WV N A WU A W N = Oo (Mihlon, supra, 169 Cal. App. 3d at p. 710.) A. Fuller has never met with, or spoken to, or otherwise communicated with Plaintiff. Other than Plaintiff’s (incorrect) allegation that A. Fulleris a resident of California, the only other time A. Fuller is mention in the complaint is when Plaintiff alleges, “R. FULLER, JR. and A. FULLER executed a Guaranty to Lease which unconditionally guaranteed the prompt performance by THE MEAT HOUSE- 18 MISSION VIEJO, LLC of each and every term and condition ofthe Lease.” (Complaint at § 21.) As per A. Fuller’s declaration, she never signed this document. In fact, A. Fuller explicitly stated to her husband that she wanted nothing to do with the Meat House. (A. Fuller Decl. at § 4.) R. Fuller also admits that A. Fuller did not sign the Guaranty of Lease which purports to show her signature. (R. Fuller Decl. at § 7.) After the Guaranty of Lease was signed, R. Fuller did not inform A. Fuller of its existence until after his operation failed. (R. Fuller Decl. at § 8.) A. Fuller first saw the Guaranty of Lease with her name on it when she was served with the complaint. (A. Fuller Decl. at § 6; R. Fuller Decl. at § 8.) Since A. Fuller never even knew her name was the Guaranty of Lease and rejected any involvement with this California business, she never “deliberately engaged” (Pavlovich, supra, 29 Cal.4th at 269) with any California operation that would justify specific jurisdiction. Plaintiff could have and should have avoided this issue by requiring a notarized signature which is common with leases and real estate related documents. In the absence of a notary, Plaintiff and A. Fuller were exposed to this deception by R. Fuller. We can only surmise that at the time the multiple defendants executed the lease documents, Plaintiff was not that concerned with this spousal consent and chose to dispose of the formality of a notary. Furthermore, this Court can and should judge the merits of the complaint when determining personal jurisdiction over A. Fuller. (See Regents of University ofNew Mexico v. Superior Court (1975) 52 Cal.App.3d 964, 970.) J. M. Sahlein Music Co. v. Nippon Gakki Co., Ltd. (1987) 197 Cal.App.3d 539, 545,is instructive on this point. In JM. Sahlein, the plaintiff sued a Japanese manufacturer and a California importer for wrongfully terminating the plaintiff's distributorship of acoustic guitars. The plaintiff alleged that the Japanese manufacturer conspired with the California importer to destroy the plaintiff's business. The plaintiff relied on electronic communications that 6 DEFENDANT ALLISON FULLER'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONDOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CJC S W O S W O 0 N N O N W n were sent to the Japanese manufacturer from the California importer to show 1) that the Japanese manufacturer was liable under a conspiracy theory and 2) that the Japanese manufacturer had minimum contacts to California. While evaluating the Japanese manufacturer’s motion to quash, the court noted that the contents of these communications were insufficient to show either of the plaintiff's claims. The court held that: While it is true that the issue on a motion to quash is not whether the ultimate issues ofliability will be resolved in the plaintiff's favor [citation], nevertheless, when the plaintiff seeks to predicate jurisdiction on causing tortious effects in the forum state and when the record tends unequivocally to establish that the defendant's conduct did not cause such effects, the plaintiff “cannot demand that wejudge the question ofjurisdiction in the light ofa claim he apparently does not have.” [citation] [Emphasis added] J. M. Sahlein Music Co., supra, 197 Cal.App.3d at p. 545. The only basis for Plaintiff’s allegations against A. Fulleris that she “resides” in California and that she signed the Guaranty of Lease. As the declarations attached to this motion show,thisis patently not true. This Court can and should determine that Plaintiff's allegations are insufficient to extend jurisdiction to A. Fuller. Plaintiff cannot use its allegations against R. Fuller or any other co-defendant to extend jurisdiction over A. Fuller either. The focus for purposes of the specific jurisdictional analysisis on A. Fuller’s own forum-related scliiiiy: not that of any third parties. (See Calder, supra, 465 U.S. 783 [each defendant’s contacts with the forum state must be assessed individually™].) Although R. Fuller and the other defendant may have eagerly entered into this transaction with Plaintiff, Plaintiff still has the burden to show A. Fuller was also involved and mindfully entered into this agreement. Merely being married to R. Fuller is not enough to force A. Fuller into California’s jurisdiction. Finally, to be constitutional, any exercise ofjurisdiction must be fair and reasonable. (Von's Companies, Inc., supra, 14 Cal.4th at 475-476.) A. Fuller’s lack of relevant contacts with this forum renders any exercise ofjurisdiction over her neither fair nor reasonable. What is more, A. Fuller does not have the resources to travel to California from Pennsylvania multiple times for the purpose of extensive litigation. Although Plaintiff and the State of California may have an interest 7 DEFENDANT ALLISON FULLER'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION DOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CJC O o 0 0 N N O N w n A E W N | S S C S C S E T T E — — C W N O U n B s W N = O O V V X N N D RA E W N = C o in resolving this dispute in California, this dispute does not (and should not) involve A. Fuller. Exercising jurisdiction over A. Fuller in this instance will create a burden on A. Fuller that would be unfair and unreasonable. IV. CONCLUSION Forall ofthe foregoing reasons, A. Fuller's Motion to Quash Service of the Summons on her should be granted. DATED: November 1, 2016 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP James Joseph Attorneys for Defendant Allison Fuller 8 DEFENDANT ALLISON FULLER'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONDOCS 124632-000001/2711679.1 CASE NO. 30-2016-00873226-CU-BC-CIC