Barry v. Talpa Holding CA2/2 ( 2015 )

Filed 10/15/15 Barry v. Talpa Holding CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MICHAEL ROY BARRY, B259696
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC121327)
v.
TALPA HOLDING, N.V. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard A. Stone, Judge. Affirmed.
Liddle & Robinson, David M. Marek, for Plaintiff and Appellant.
Glaser Weil Fink Howard Avchen & Shapiro, Kerry Garvis-Wright,
Julia B. Cherlow, Joshua D. Schein; Fross Zelnick Lehrman & Zissu, P.C., Richard Lehv,
Emily Weiss, for Defendants and Respondents.
******
An Irish citizen having no prior ties to California posted an idea for a television
show on a California-based website, which he claims was co-opted by a Dutch citizen
and thereafter exploited by a number of Dutch companies who eventually formed a
California-based subsidiary that produces an America version of the show. The plaintiff
sued the Dutch companies and individuals, as well as the American subsidiary, in Los
Angeles. The Netherlands-based defendants moved to quash the lawsuit for lack of
personal jurisdiction. The trial court dismissed them from the lawsuit, and denied the
plaintiff’s request for further discovery related to jurisdiction. Concluding there was no
error, we affirm.
FACTS AND PROCEDURAL HISTORY
I. Operative Complaint
In the operative first amended complaint (FAC), Michael Barry (plaintiff) alleges
that he developed an idea for a television show that was later named The Voice. In 2008,
he alleges, he uploaded the idea onto a website designed as a forum where writers can
post their ideas and/or scripts for producers. The website, which is called The TV
Writers’ Vault, requires all visitors to keep confidential, and not to exploit, the ideas they
view. In 2009, plaintiff contends, defendant Moos Stafleu (Stafleu) visited the website
on behalf of her then-employer, defendant The Entertainment Group (TEG). Defendant
Talpa Holding, N.V. (Talpa Holding) subsequently acquired TEG after TEG went into
bankruptcy. In 2010, The Voice of Holland premiered in the Netherlands; defendants
John de Mol (de Mol) and Talpa Content B.V. (Talpa Content) are credited with
developing the show. In 2011, an American version of the show—The Voice—
premiered.
II. Jurisdictional Facts
Plaintiff is an Irish citizen.
Stafleu and de Mol are Dutch citizens. Neither Stafleu nor de Mol lives in
California, is paid a salary by any California person or entity, owns any property in
California, has a mailing address or telephone number in California, has a bank account
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in California, or pays taxes in California. De Mol travels to California approximately
three times a year, and spends less than half of that time on business “related to The
Voice.”
TEG was a Dutch corporation.
Talpa Holding is a “private Dutch holding and management company”
headquartered in the Netherlands. De Mol founded Talpa Holding, and currently serves
as the chairman of its board of directors. Talpa Holding itself has just eight employees
and “does not conduct any business other than its ownership and management of the
Talpa Subsidiaries.” Among others, these subsidiaries include: (1) Talpa Content;
(2) Talpa International B.V. (Talpa International); and (3) Talpa Media USA. Talpa
Content is a “Dutch private limited liability company” that “creat[es] and develop[s]
creative content, including scripted television shows, reality television shows, talent
television shows, and game shows.” As noted above, Talpa Content originally developed
The Voice of Holland. Talpa International licenses rights to the shows developed by
Talpa Content “to parties outside the Netherlands,” and was the entity that licensed the
rights to The Voice to Talpa Media USA. Talpa Media USA is based in California.
Talpa Holding and Talpa Content maintain no offices, property, employees, bank
accounts, mailing addresses, or telephone numbers in California; they are not registered
or licensed to do business in California; their employees do not regularly travel to
California; and they have “no involvement in the American version of The Voice.”
III. Litigation
Plaintiff filed suit against Stafleu, TEG, Talpa Holding, Talpa Content, Talpa
Media USA, and de Mol in Los Angeles County Superior Court. In the FAC, plaintiff
sued on theories of (1) breach of contract, because Stafleu—and, by extension, the other
defendants—breached the confidentiality and nonexploitation contract formed by the
terms of service on The TV Writers’ Vault website, and (2) inducing a breach of contract,
because Talpa Holding, Talpa Content, and de Mol induced Stafleu and TEG to breach
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the website’s terms of service. TEG was never served, and is not part of the lawsuit or
this appeal.
All of the defendants except Talpa Media USA moved to quash due to lack of
personal jurisdiction. After briefing, the trial court issued a written ruling granting the
motion. The court found that plaintiff had not carried his burden of adducing evidence to
show that the Dutch defendants (1) had a sufficiently pervasive presence in California to
subject them to “general jurisdiction” in California, (2) had purposefully availed
themselves of the benefits of California’s law necessary to subject them to “specific
jurisdiction,” or (3) could be subjected to jurisdiction based upon Talpa Media USA’s
activities in California under theories of agency or alter ego. Instead, the court found that
“Plaintiff’s arguments hinge far too much on speculation, assumed facts, and, in some
instances, assumptions based on other assumptions.” The court also denied plaintiff’s
“implied request” for jurisdictional discovery.
The trial court thereafter dismissed Talpa Holding, Talpa Content, de Mol and
Stafleu from the lawsuit, and entered judgment in their favor.
Plaintiff timely appeals.
DISCUSSION
I. Personal Jurisdiction
California grants to its courts the power to assert personal jurisdiction as far as the
United States Constitution allows. (Code Civ. Proc., § 410.10; Integral Development
Corp. v. Weissenbach (2002) 99 Cal. App. 4th 576, 583 (Integral Development)
[California’s “long-arm statute ‘manifests an intent to exercise the broadest possible
jurisdiction,’ limited only by the constitutional considerations of due process”].) The
federal Constitution upholds the exercise of personal jurisdiction over an out-of-state
defendant as long as “the defendant has ‘certain minimum contacts with [the State] such
that the maintenance of the suit does not offend “traditional notions of fair play and
substantial justice.”’” (Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 131 S.
Ct. 2846, 2853 (Goodyear), quoting International Shoe Co. v. Washington (1945) 326
4
U.S. 310, 316.) “Minimum contacts exist where the defendant’s conduct in, or in
connection with, the forum state is such that the defendant should reasonably anticipate
being subject to suit in that state.” (BBA Aviation PLC v. Superior Court (2010) 190
Cal. App. 4th 421, 429 (BBA Aviation).) We proceed with special care when an out-of-
state defendant is also an out-of-country defendant. (E.g., In re Automobile Antitrust
Cases I and II (2005) 135 Cal. App. 4th 100, 113 (In re Automobile).)
There are two types of personal jurisdiction: (1) “general or all-purpose
jurisdiction” and (2) “specific or conduct-linked jurisdiction.” (Daimler AG v. Bauman
(2014) 134 S. Ct. 746, 751 (Daimler).) It is the plaintiff’s burden to come forward with
“competent”—that is, admissible—“evidence of jurisdictional facts” that would support a
finding, by a preponderance of the evidence, of contacts sufficient to confer general or
specific jurisdiction. (BBA Aviation, supra, 190 Cal.App.4th at pp. 428-429; Nobel
Farms, Inc. v. Pasero (2003) 106 Cal. App. 4th 654, 658.) Allegations in an unverified
complaint, like the complaint we have here, are not enough. (DVI, Inc. v. Superior Court
(2002) 104 Cal. App. 4th 1080, 1091 [“(a)n unverified complaint has no evidentiary value
in meeting the plaintiff’s burden of proving minimum contacts”].) If, and only if, the
plaintiff carries his burden is the out-of-state defendant called upon to show, in the
context of specific jurisdiction, why the exercise of jurisdiction would nevertheless be
unreasonable. (BBA Aviation, at p. 429.)
In evaluating a trial court’s ruling as to whether there are sufficient contacts to
confer personal jurisdiction, we review the court’s factual findings, when the facts are
disputed, for substantial evidence. (Burdick v. Superior Court (2015) 233 Cal. App. 4th 8,
17.) In so doing, we “accept the trial court’s resolution of factual issues, [and] draw all
reasonable inferences in support of the trial court’s order . . . .” (Ibid.) When the facts
are undisputed, or when we review the trial court’s ruling regarding the reasonableness of
exercising jurisdiction, our review is de novo. (Integral Development, supra, 99
Cal.App.4th at p. 585.)
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The analysis of personal jurisdiction for Talpa Holding, Talpa Content, and
de Mol differs from the analysis regarding Stafleu; each will be addressed separately.
A. Talpa Holding, Talpa Content, and de Mol
Plaintiff advances three theories by which he contends that California courts have
jurisdiction over Talpa Holding, Talpa Content, and de Mol: (1) general jurisdiction,
based on their direct contacts with California; (2) specific jurisdiction, based on their
direct contacts with California; and (3) general and specific jurisdiction, based on Talpa
Media USA’s contact with California. We will consider each theory separately.
1. General jurisdiction
When a California court has general jurisdiction over an out-of-state defendant,
that defendant may be sued in California by anyone irrespective of the subject matter of
the lawsuit. (Walden v. Fiore (2014) 134 S. Ct. 1115, 1121, fn. 6.) This broad, “all-
purpose” jurisdiction will be found only when the out-of-state defendant’s “‘affiliations
with the State are so “continuous and systematic” as to render [the defendant] essentially
at home in the forum State.’” (Daimler, supra, 134 S.Ct. at p. 749, quoting Goodyear,
supra, 131 S.Ct. at p. 2851.) Although other proof of continuous and systematic contacts
can in rare cases be enough to make a defendant “at home” in a state, an individual is
generally “at home” only in the state where he or she is domiciled, and a corporation is
generally “at home” only in the states where it is incorporated and/or has its principal
place of business. (Daimler, at p. 760.) Simply doing business in the forum state is not
sufficient to confer general jurisdiction. (Helicopteros Nacionales de Colombia, S.A. v.
Hall (1984) 466 U.S. 408, 416-419 (Helicopteros) [corporate defendant sending its CEO
to forum state for business meeting, accepting checks drawn on bank in forum state,
purchasing equipment from business in the forum state, and sending personnel to forum
state for training; no general jurisdiction]; cf. Perkins v. Benguet Consol. Mining Co.
(1952) 342 U.S. 437, 448 [corporate defendant’s president residing and maintaining
office, maintaining company files, and overseeing company activities; general
jurisdiction].)
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There is substantial evidence to support the trial court’s finding that Talpa
Holding, Talpa Content, and de Mol did not have “continuous and systematic” dealings
with California that would render California their “home.” Talpa Holding and Talpa
Content were formed and principally operated in the Netherlands; de Mol lives in the
Netherlands. Nor do their limited business and personal dealings with California rise to
the level of continuous and systematic affiliations with the state.
Plaintiff offers three arguments as to why the trial court erred in finding these
defendants’ contacts insufficient to confer general jurisdiction. First, plaintiff asserts that
Talpa Holding, Talpa Content, and de Mol themselves produced The Voice in Los
Angeles until Talpa Media USA was formed and assumed that task. Plaintiff points to
language in Talpa Holding’s website in 2014 referring to an entity called “Talpa
Productions” as its “in-house production unit.” But this is meaningless unless plaintiff
also establishes that (1) Talpa Productions was producing The Voice in California prior to
the formation of Talpa Media USA, and (2) Talpa Productions is an alter ego or agent of
one of the defendants in this case. Plaintiff has not established either of these additional
links. Further, the defendants each disclaim involvement in producing The Voice. In
sum, plaintiff has not adduced evidence that any of the defendants was producing The
Voice.
Second, plaintiff contends that Talpa Holding, Talpa Content, and Talpa Media
USA functioned as a single body with de Mol as its head, acting as a unitary Talpa Media
conglomerate. For support, he points to language on a website affiliated with Talpa
Holding referring to Talpa Media USA as “its production company” and its “production
arm,” with de Mol at the “head” of the conglomerate. Plaintiff also points to news
articles in third party sources that refer to Talpa Media USA as Talpa’s “U.S. division.”
Although no defendant objected to these articles, the trial court did not rely on them; nor
will we, because they constitute inadmissible hearsay. (Evid. Code, § 1200.) Plaintiff
also cites Hendricks v. New Video Channel America, LLC (C.D.Cal. June 8, 2015, 2:14-
cv-02989-RSWL-SSx) 2015 U.S.Dist. Lexis 74677 (Hendricks), which held that
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California could exert general jurisdiction over a Canadian-based corporation for
copyright infringement and breach of contract arising out of theft of a screenplay when
the foreign corporation’s wholly owned subsidiary operated in California. (Id. at pp. 17-
21.)
We are unpersuaded. The representations on Talpa Holding’s website (or, for that
matter, in the third party articles) indicating that the various Talpa entities were working
together as part of a media conglomerate do not mean that they were a single entity.
(Accord, BBA Aviation, supra, 190 Cal.App.4th at p. 432 [“The use of ‘we’ or ‘the
Company’ . . . does not prove” that a holding company and its subsidiary “were a single
entity in practice”]; see also id. at pp. 434-435 [sharing a single logo also not sufficient
proof of a single entity].) Hendricks is also not dispositive. To begin, Hendricks found
jurisdiction upon a “prima facie showing of personal jurisdiction” (Hendricks, supra, at
p. 3; accord, Fields v. Sedgwick Associated Risks, Ltd. (9th Cir. 1986) 796 F.2d 299,
301); California, by contrast, requires the prerequisites to jurisdiction to be established by
a preponderance of the evidence (Moncrief v. Clark (2015) 238 Cal. App. 4th 1000, 1005).
Further, and contrary to what Hendricks seems to suggest, the law in California is that
“neither ownership nor control of a subsidiary corporation by a foreign parent
corporation, without more, subjects the parent to the jurisdiction of the state where the
subsidiary does business.” (Sonora Diamond Corp. v. Superior Court (2000) 83
Cal. App. 4th 523, 540 (Sonora Diamond).) More to the point, plaintiff’s argument at
most creates a conflict between the evidence he highlights and the statements to the
contrary in the Dutch defendants’ declarations. But it is well settled that a conflict in the
evidence does not render it insubstantial. (See Stephens v. County of Tulare (2006) 38
Cal. 4th 793, 804.) Here, the record contains sufficient evidence that each of the Talpa
entities operated separately and this evidence constitutes substantial evidence supporting
the trial court’s ruling.
Third, plaintiff argues that de Mol—and, by extension, Talpa Content—are
directly involved with The Voice show because (1) de Mol created the format for the
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show and retains creative control over the format of The Voice, (2) de Mol is listed as
executive producer of The Voice, and (3) de Mol has on occasion traveled to California to
conduct business regarding the show, including receiving an Emmy Award. Occasional
visits to a state for business are not sufficient to confer general jurisdiction (Helicopteros,
supra, 466 U.S. at pp. 417-418). Further, de Mol’s listing as executive producer and
control over the show’s format in general are not evidence of his direct involvement, or
else he would be subject to jurisdiction in every one of the many countries in which the
show is produced.
2. Specific jurisdiction
Unlike general jurisdiction, when a California court has specific jurisdiction over
an out-of-state defendant, that jurisdiction only subjects that defendant to suit in
California on the “issues deriving from, or connected with, the very controversy that
establishes [the existence of specific] jurisdiction.” (Goodyear, supra, 131 S.Ct. at
p. 2851.) A court may exercise specific jurisdiction over an out-of-state defendant only if
the defendant has (1) “‘“‘purposefully availed himself or herself of forum benefits’”’”
(Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216
Cal. App. 4th 591, 598 (Bombardier), quoting Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal. 4th 434, 446 (Vons)), (2) “‘“‘the “controversy is related to or ‘arises out of’
[the] defendant’s contacts with the forum”’ [citation]”’” (Bombardier, at p. 598), and
(3) “‘“‘“the assertion of personal jurisdiction would comport with ‘fair play and
substantial justice’”’ [Citations.]” [Citation.]’” (ibid.).
In this case, the trial court’s finding that Talpa Holding, Talpa Content, and de
Mol did not purposefully avail themselves of California’s benefits is supported by
substantial evidence—namely, the declarations that these Dutch defendants conduct their
business in the Netherlands and were not involved in the California-based production of
The Voice. (Accord, Asahi Metal Industry Co., Ltd. v. Superior Court (1987) 480 U.S.
102, 116 (Asahi) [out-of-state corporation with no business, office, employees, property,
advertisements or solicitation in the forum state; no purposeful availment].) Plaintiff’s
9
arguments to the contrary echo the arguments he urged in favor of general jurisdiction—
namely, that these defendants were involved in producing The Voice before Talpa Media
USA was formed and that Hendricks should be followed. We reject these arguments for
the reasons stated above.
Additionally, we concur with the trial court’s conclusion that, even if these
defendants had purposefully availed themselves of California’s benefits, it would still be
unreasonable to exercise specific jurisdiction over them. In assessing reasonableness, a
trial court is to consider “(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.”’ [Citation.]”
(Anglo Irish Bank Corp., PLC v. Superior Court (2008) 165 Cal. App. 4th 969, 979.)
Where, as here, the out-of-state defendants are from another country, “‘great care and
reserve should be exercised’” (Asahi, supra, 480 U.S. at p. 115; F. Hoffman-La Roche,
Ltd. v. Superior Court (2005) 130 Cal. App. 4th 782, 795-796, 805 (Hoffman-LaRoche))
because “defend[ing] oneself in a foreign legal system” subjects foreign defendants to
“unique burdens” (Asahi, at p. 114).
On balance, these factors counsel against the exercise of personal jurisdiction.
Talpa Holding, Talpa Content, and de Mol would all face “unique burdens” if forced to
defend this lawsuit in California because they live and work on a different continent, in a
country with a different language and a different legal system. Although California has a
general interest in the development of the law governing intellectual property rights
involving the film industry (Hendricks, supra, 2015 U.S.Dist. Lexis 74677, at pp. 20-21),
California has no particular interest in this case because plaintiff himself is not a
California resident and has few, if any, ties to California. Thus, California’s “manifest
interest in providing a local forum for its residents to redress injuries inflicted by out-of-
state defendants” does not come into play. (Integral Development, supra, 99 Cal. App. 4th
10
at pp. 591-592.) Plaintiff makes much of the fact that evidence of Stafleu’s “access”
(ostensibly, Stafleu’s exposure to plaintiff’s idea on The TV Writers’ Vault website) may
be found in California, but “access” is an issue pertaining to copyright and plaintiff has
not alleged any copyright violation. Because California is no better a forum than the
alternatives, the interests of the international judicial system (including Ireland, the
Netherlands, and the United States) are not disserved by requiring plaintiff to litigate his
claims elsewhere.
3. Imputed jurisdiction based on Talpa Media USA
Courts have on occasion exercised jurisdiction over an out-of-state defendant
based not on its own activities in a state, but on the basis of another person’s or entity’s
activities in that state. In imputing one person’s or entity’s contacts with a state to
another, courts have exercised general jurisdiction (e.g., Paneno v. Centres for Academic
Programmes Abroad Ltd. (2004) 118 Cal. App. 4th 1447 (Paneno)) and specific
jurisdiction (e.g., Daimler, supra, 134 S. Ct. at p. 759, fn. 13). Sometimes, they have
analyzed imputation as a separate subspecies of general or specific jurisdiction (e.g.,
Paneno, at pp. 1455-1456); other times, they have factored imputation into the traditional
tests for general or specific jurisdiction (HealthMarkets, Inc. v. Superior Court (2009)
171 Cal. App. 4th 1160, 1169-1170).
Plaintiff seeks to impute Talpa Media USA’s activities in California to Talpa
Holding, Talpa Content, and de Mol under three theories: (1) agency; (2) representative
services; and (3) alter ego.
a. Agency
“Control is the key characteristic of the agent/principal relationship.” (Sonora
Diamond, supra, 83 Cal.App.4th at p. 541.) Starting from “the ‘firm proposition that
neither ownership nor control of a subsidiary corporation by a foreign parent corporation,
without more, subjects the parent to the jurisdiction of the state where the subsidiary does
business’” (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 797), the degree of control
necessary to create an agency relationship between a parent corporation and its subsidiary
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is necessarily great: “[T]he parent must be shown to have moved beyond the
establishment of general policy and direction for the subsidiary[,] and in effect taken over
performance of the subsidiary’s day-to-day operations in carrying out that policy.” (Id. at
p. 798, italics omitted; Sonora Diamond, supra, 83 Cal.App.4th at pp. 541-542 [requiring
“pervasive and continual” control and “parent’s purposeful disregard of the subsidiary’s
independent corporate existence”].)
In this case, the trial court’s finding that Talpa Media USA did not function as the
agent of Talpa Holding, Talpa Content, or de Mol is supported by substantial evidence
because plaintiff did not adduce evidence indicating that either Dutch corporation or de
Mol, as the CEO of Talpa Holding, had “taken over performance” of Talpa Media USA’s
“day-to-day operations.” To the contrary, the evidence indicates that Talpa Media USA
was run by its own CEO, not de Mol.
b. Representative services
The doctrine of “representative services” is a species of agency relationship.
(Sonora Diamond, supra, 83 Cal.App.4th at p. 542, fn. 11; BBA Aviation, supra, 190
Cal.App.4th at p. 430.) However, unlike agency and its focus on one entity’s “control”
over another, the representative services doctrine focuses on whether “the local agent
essentially exists only to further the business of the [out-of-state defendant], and but for
the local agent’s existence, the [out-of-state defendant] would be performing those
functions in the forum itself.” (BBA Aviation, at p. 430; Hoffman-La Roche, supra, 130
Cal.App.4th at pp. 798-799.) Recently, the United States Supreme Court counseled
against broad application of this doctrine: If the doctrine is read to create personal
jurisdiction whenever the local agent performs a task that is “important” to the out-of-
state parent corporation and that it would otherwise end up doing itself, the Supreme
Court reasoned, the doctrine would “subject foreign corporations to general jurisdiction
whenever they have an in-state subsidiary or affiliate, an outcome that would sweep
beyond even the ‘sprawling view of general jurisdiction’ [the Court] rejected in
Goodyear.” (Daimler, supra, 134 S.Ct. at p. 760.)
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The representative services doctrine has been applied against corporate parents
with local subsidiaries (e.g., BBA Aviation, supra, 190 Cal.App.4th at p. 430) as well as
between corporate “siblings” (e.g., Paneno, supra, 118 Cal.App.4th at p. 1457). Plaintiff
seeks to invoke the doctrine against Talpa Holding (as Talpa Media USA’s parent) and
against Talpa Content (as Talpa Media USA’s sibling corporation). Both arguments are
without merit.
The representative services doctrine will subject a parent holding company to
personal jurisdiction based on the subsidiary’s activities in California only if the holding
company “is not a legitimate holding company”—that is, if the holding company is
“conduct[ing] its own operations or transactions.” (BBA Aviation, supra, 190
Cal.App.4th at p. 431.) By contrast, where the holding company is legitimate, “the
subsidiary is not performing a function that the parent would otherwise have performed
itself” because “the holding company could simply hold another type of subsidiary.”
(Sonora Diamond, supra, 83 Cal.App.4th at p. 543.) As noted above, plaintiff did not
present evidence that Talpa Holding was not a “legitimate holding company”; indeed, the
evidence presented indicates that it was.
The representative services doctrine can also be used to impute contacts from one
sister corporation to another. In Paneno, the court confronted two corporations—one
based in California (CAPA-USA) and one based in England (CAPA-UK)—that jointly
operated a student foreign exchange program. (Paneno, supra, 118 Cal.App.4th at
pp. 1456-1457.) The court further observed that the two entities’ division of labor was
designed to insulate both corporations from “answering to any claim for negligence in
California.” (Id. at p. 1457.) The court concluded that CAPA-USA’s contacts with
California could be imputed to CAPA-UK. (Ibid.) This case is distinguishable because
Talpa Content was not involved in Talpa Media USA’s production of The Voice.
Moreover, there is no evidence indicating that Talpa Content and Talpa Media USA were
structured in such a way to evade suit in California; indeed, Talpa Media USA did not
file a motion to quash in this case.
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c. Alter ego
Courts generally presume that a corporation is its own “legal entity, separate and
distinct from its stockholders, officers, and directors, with separate and distinct liabilities
and obligations.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 538.) However, that
presumption is rebuttable and a plaintiff will be permitted to treat the corporation as the
“alter ego” of another person or entity if he shows (1) “a unity of interest and ownership
between the corporation and its equitable owner that the separate personalities of the
corporation and the shareholder do not in reality exist,” and (2) “an inequitable result if
the acts in question are treated as those of the corporation alone.” (Hoffman-La Roche,
supra, 130 Cal.App.4th at pp. 796-797.) In assessing whether there is a unity of interest
and ownership, courts look to several indicia including the commingling of funds and
other assets, one entity holding itself out as liable for the other’s debts, identical equitable
ownership, overlap in offices and employees, use of one entity as a shell for the other,
inadequate capitalization, identical officers and directors, disregard of corporate
formalities, and lack of segregation of corporate records. (Sonora Diamond, at pp. 538-
539.) The alter ego doctrine is “an extreme remedy, sparingly used.” (Ibid.)
The trial court’s rejection of this theory is supported by substantial evidence.
Plaintiff presented no evidence of commingling, jointly shared debts, identical equitable
ownership, overlap in offices and employees, Talpa Media USA’s existence as a “shell,”
inadequate capitalization, identical officers and directors, disregard of corporate
formalities, or commingling of corporate records. Nor, for the reasons set forth in our
analysis of reasonableness above, is it inequitable to require plaintiff to litigate his claims
in another forum.
B. Stafleu
Plaintiff argues that California courts have specific jurisdiction over Stafleu based
on (1) her act of accessing The TV Writers’ Vault website, which lists a Los Angeles
street address, and agreeing to its terms of service, and (2) her involvement in the
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production and distribution of The Voice in California. Plaintiff adduced no evidence to
support this second theory, so we focus on the first.
The trial court’s finding that Stafleu had not purposefully availed herself of the
benefits of doing business in California is supported by substantial evidence. Stafleu’s
act of visiting, from the Netherlands, a website with a California street address, does not
amount to purposeful availment. Stafleu did not attempt to solicit Internet business from
California residents (Snowney v. Harrah’s Entertaiment, Inc. (2005) 35 Cal. 4th 1054,
1062) and did not engage in intentional conduct aimed at a forum resident that harms that
resident (Facebook, Inc. v. ConnectU LLC (N.D.Cal. Aug. 13, 2007, C07-01389), 2007
U.S.Dist. Lexis 61962, at pp. 2-3, 6). All she did was access the website, and agree to its
terms of service. At most, Stafleu entered into a contract with The TV Writers’ Vault, but
it is well settled that entering into a contract with a forum resident is not sufficient by
itself to establish the contacts necessary for specific jurisdiction. (Burger King Corp. v.
Rudzewicz (1985) 471 U.S. 462, 478.)
The trial court’s conclusion that exercising jurisdiction over Stafleu would be
unreasonable is also correct, for the same reasons that apply to the Talpa defendants.
II. Jurisdictional Discovery
We review the trial court’s ruling on a motion for a continuance for jurisdictional
discovery for an abuse of discretion. (In re Automobile, supra, 135 Cal.App.4th at
p. 127.) “In order to prevail on a motion for a continuance for jurisdictional discovery,
the plaintiff should demonstrate that discovery is likely to lead to the production of
evidence of facts establishing jurisdiction.” (Ibid.) Plaintiff has not articulated what
discovery he would seek, how it would impact the analysis of jurisdiction, or why he
could not have obtained the discovery during the many months the motions to quash were
pending. The trial court accordingly did not abuse its discretion in denying plaintiff’s
request.
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DISPOSITION
The judgment of dismissal is affirmed. Defendants are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
____________________________, P.J.
BOREN
____________________________, J.
ASHMANN-GERST
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