O'Donnell v. Mobility Lifter CA2/6 ( 2021 )

Filed 12/14/21 O’Donnell v. Mobility Lifter CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
JACOB O'DONNELL, 2d Civil No. B308996
(Super. Ct. No. 20CV02191)
Plaintiff and Appellant, (Santa Barbara County)
v.
MOBILITY LIFTER, LLC,
Defendant and Respondent,
Respondent Mobility Lifter, LLC, is a Tennessee company
that produces a stair-climbing device for a person with disablity.
Appellant Jacob O’Donnell, a California resident, purchased the
device from an independent dealer. Appellant was dissatisfied
with the device. When respondent refused to permit him to
return it, appellant brought an action against respondent.
Appellant appeals an order granting respondent’s motion to
quash service of summons for lack of personal jurisdiction and
dismissing the action. Appellant contends that he made a
sufficient showing of respondent’s contacts with California to
subject it to personal jurisdiction. We disagree and affirm.
Factual Background
Appellant’s Evidence
Appellant is a paraplegic and is confined to a wheelchair.
He resides in Santa Barbara. He wanted to visit his brother in
Massachusetts, but the brother’s home is “not wheelchair
accessible owing to the steep inclined stairs that must be climbed
in order to enter the home.”
Appellant “started searching on the internet for the best
device to allow [him] to climb the stairs of [his] brother’s home.”
He “landed on the website of [respondent], Mobility Lifter, LLC,
and reviewed their product[,] the ‘Liftkar.’” He telephoned
Jeanine A. Carroccio, respondent’s CEO, and told her that he was
interested in purchasing a Liftkar. Appellant said that, although
he lived in California, the Liftkar must be sent to his brother’s
home in Massachusetts. Carroccio told appellant to contact her
“‘dealer’ in [Massachusetts] named Mike.” She said she “had
dealers all over the country,” including in California.
Appellant again telephoned Carroccio. She “stated that if I
chose to purchase the Liftkar, it would literally change my life,
and I would not want to return it, but if I did not like it, I did
have the option to return it.” About one month later, appellant
telephoned Carroccio. “She ensured [sic] me the [Liftkar] would
work great and if it did not, they would take it back.”
Appellant contacted Mike and arranged to purchase the
Liftkar from his company, Health Wise at Home (Health Wise),
which is located in Massachusetts. Mike “repeated all of Ms.
Carroccio’s promises, including that the device could be returned
if I was not happy with it.” After the purchase, Mike went to
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appellant’s brother’s home in Massachusetts and trained the
brother on the use of the Liftkar. After the training was
completed, Mike delivered the Liftkar to appellant’s brother.
Appellant travelled to Massachusetts to visit his brother.
“[T]he Liftkar did not perform as [respondent] promised.” “I had
to get on the floor and climb the stairs from the ground. . . . I had
the attention of everyone at the home, including visitors that I
have never met before. I was humiliated. I began crying due to
the humiliation and frustration I was experiencing. . . . I was
helped up each step slowly, careful to not succumb to causing any
pressure sores or injuries that would require hospitalization to
get to the main floor of the house.” “I sat in the house with tears
in my eyes for the remainder of the day and was not willing to
leave the house until it was time to go to the airport [to return to
California].”
Appellant notified Mike that the Liftkar “was not
performing as promised.” Mike said “that the steps to my
brother’s house were steeper than usual, and with those stairs,
and with the wet climate, the Liftkar would not be a good option
for entering [the brother’s] home. When [appellant] asked [Mike]
why he had not made that determination during the training, . . .
Mike said ‘I hoped it would work’ or something to that effect.”
Respondent refused to allow appellant to return the Liftkar
and get his money back. Carroccio said he could sell it through
the internet on eBay, but he would have to pay respondent’s
dealer to train the purchaser on its use. Mike said “that [his
company] would not take the device back and similarly suggested
[that appellant] sale [sic] it on the internet.”
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Respondent’s Evidence
Respondent’s motion to quash was accompanied by
Carroccio’s declaration in support of the motion. The declaration
is not included in the record on appeal. In its ruling the trial
court summarized Carroccio’s declaration. In his opening brief
appellant “adopts the facts as forth in the Court’s ruling.” The
ruling’s summary of Carroccio’s declaration is as follows:
“[Respondent] is incorporated in the state of Tennessee and has
its principal place of [business in] Pleasant View, Tennessee.
[Respondent’s] owners and members are not residents of
California and do not own any real property in California.
[Respondent] is not registered and does not do business in
California, does not have an office or mailing address in
California, and does not have any employees in California. [¶] In
early 2019, [appellant] contacted [respondent] to inquire about
the Liftkar and specifically informed Carroccio that the product
was intended to be used at his brother’s residence in
Massachusetts. [Appellant] also informed her that the product
needed to be shipped directly to the Massachusetts residence.
Carroccio referred [appellant] to Health Wise, an independent
dealer of the Liftkar located in Massachusetts, for any further
inquiries about purchasing the product in Massachusetts.
[Respondent] contracts with Health Wise as an independent
dealer for the sale, shipment, and training on the use of the
Liftkar in Massachusetts. [Respondent] ships the Liftkar to
Health Wise, which, in turn, sells and delivers the product and
provides training on the use of the product to customers in
Massachusetts.” (Citations to Carroccio’s declaration omitted.)
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Procedural Background and Trial Court’s Ruling
Appellant filed an unverified complaint against respondent
and Health Wise. The complaint consisted of five causes of
action: violation of the Consumers Legal Remedies Act (Civ.
Code, § 1750 et seq. (CLRA); negligence per se; violation of
Business and Professions Code section 17200; breach of contract;
and intentional misrepresentation. The misrepresentation was
that “if the [Liftkar] . . . was not suitable for [appellant’s] uses,
Defendants would take the item back and refund the money.”
Respondent moved to quash service of summons for lack of
personal jurisdiction. The trial court granted the motion and
dismissed the action as to respondent. The court concluded,
“[Appellant] has not sustained his burden to establish the facts of
general or specific jurisdiction over [respondent] by a
preponderance of the evidence.” The court explained: “The
evidence establishes that [appellant] discovered [respondent’s]
product online and contacted [respondent] by phone, speaking
with Carroccio. Carroccio described the product to [appellant]
and promoted its quality. She then referred him to a dealer in
Massachusetts where [appellant] wanted the product installed.”
“There is no evidence about [respondent’s] website other than
[that] it contained information about Liftkar.” “It is
uncontroverted that [respondent] did not directly solicit
California residents or target [appellant] as a customer. . . . All
[respondent] did was ship the product from Tennessee to its
dealer in Massachusetts. All of the dealer’s work was done in
Massachusetts. [Respondent] did not ‘reach back’ to California or
have a continuing obligation to do anything in California.”
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Appellant’s Burden of Proof and Standard of Review
“On a challenge to personal jurisdiction by a motion to
quash, the plaintiff has the [initial] burden of proving, by a
preponderance of the evidence, the factual bases justifying the
exercise of jurisdiction. [Citation.] The plaintiff must come
forward with affidavits and other competent evidence to carry
this burden and cannot simply rely on allegations in an
unverified complaint. [Citation.] If the plaintiff meets this
burden, ‘it becomes the defendant's burden to demonstrate that
the exercise of jurisdiction would be unreasonable.’” (ViaView,
Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210).
“When no conflict in the evidence exists, . . . the question of
jurisdiction is purely one of law and the reviewing court engages
in an independent review of the record. [Citation.]” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449
(Vons), impliedly abrogated on other grounds in Bristol-Myers
Squibb v. Superior Court (2017) __ U.S. __, [137 S. Ct. 1773,
1781].) Appellant contends that “the facts are not in dispute.”
Respondent does not challenge his contention. We therefore
independently review the record.
General and Specific Jurisdiction over the Person
“California's long-arm statute authorizes California courts
to exercise jurisdiction on any basis not inconsistent with the
Constitution of the United States or the Constitution of
California. [Citation.] A state court's assertion of personal
jurisdiction over a nonresident defendant who has not been
served with process within the state comports with the
requirements of the due process clause of the federal Constitution
if the defendant has such minimum contacts with the state that
the assertion of jurisdiction does not violate ‘“traditional notions
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of fair play and substantial justice.”’” (Vons, supra, 14 Cal.4th at
p. 444.) “[E]ach individual has a liberty interest in not being
subject to the judgments of a forum with which he or she has
established no meaningful minimum ‘contacts, ties or relations.’”
(Id. at p. 445.)
“Personal jurisdiction may be either general or specific. A
nonresident defendant may be subject to the general jurisdiction
of the forum if his or her contacts in the forum state are
‘substantial . . . continuous and systematic.’” (Vons, supra, 14
Cal.4th at p. 445.) Appellant does not claim respondent was
subject to the trial court’s general jurisdiction. He claims it was
subject to the court’s specific jurisdiction.
“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. 277, 283-284
(Walden).) “A court may exercise specific jurisdiction over a
nonresident defendant only if: (1) ‘the defendant has purposefully
availed himself or herself of forum benefits’ [citation]; (2) ‘the
“controversy is related to or ‘arises out of’ [the] defendant’s
contacts with the forum”’ [citation]; and (3) ‘“the assertion of
personal jurisdiction would comport with ‘fair play and
substantial justice’”’ [citations].” (Pavlovich v. Superior Court
(2002) 29 Cal.4th 262, 269 (Pavlovich).)
“For a State to exercise [specific] jurisdiction consistent
with due process, the defendant’s suit-related conduct must
create a substantial connection with the forum State. . . . [¶]
First, the relationship [between the defendant and the forum]
must arise out of contacts that the ‘defendant himself’ creates
with the forum State. [Citation.] Due process limits on the
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State’s adjudicative authority principally protect the liberty of
the nonresident defendant—not the convenience of plaintiffs or
third parties. [Citation.] . . . [¶] Second, our ‘minimum contacts’
analysis looks to the defendant’s contacts with the forum State
itself, not the defendant’s contacts with persons who reside there.
[Citations.]” (Walden, supra, 571 U.S. at pp. 284-285.) “‘[T]he
“minimum contacts” test . . . is not susceptible of mechanical
application; rather, the facts of each case must be weighed to
determine whether the requisite “affiliating circumstances” are
present.’” (Pavlovich, supra, 29 Cal.4th at p. 268.)
No Personal Jurisdiction Based on
Respondent’s Minimum Contacts with California
We agree with the trial court that appellant failed to prove
by a preponderance of the evidence sufficient minimum contacts
between respondent and California. Respondent’s passive web
site was insufficient. (Pavlovich, supra, 29 Cal.4th at p. 274 [no
personal jurisdiction “where a defendant has simply posted
information on an Internet Web site which is accessible to users
in foreign jurisdictions”].)
The present case is similar to Shisler v. Sanfer Sports Cars,
Inc. (2006) 146 Cal.App.4th 1254 (Shisler). There, defendant was
incorporated and located in Florida. It had “never directly
advertised in [California], and ha[d] never intentionally targeted
any California resident as a potential buyer or seller of an
automobile. . . . The company maintain[ed] a Web site that [was]
accessible to anyone in the world with access to the Internet. The
Web site [did] not target California residents.” (Id. at p. 1257.)
The plaintiff saw a used BMW “advertised on defendant’s Web
site. The Web site stated that defendant shipped vehicles
‘worldwide.’ Plaintiff wrote to and telephoned defendant to
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inquire about the vehicle and he ultimately decided to purchase
it. The contract for sale of the vehicle was prepared in Florida
and mailed to plaintiff in California.” (Id. at pp. 1257-1258.)
When the vehicle arrived in California, it was not what
plaintiff had expected. He sued defendant in California for
violation of the CLRA, common law fraud, and
misrepresentation. The appellate court upheld the granting of
defendant’s motion to quash service of summons. It reasoned:
“[T[here is no evidence that this was anything other than a one-
time transaction. Further, there is no evidence that defendant
ever expressly reached out to California in search of this or any
other business opportunity. After the vehicle left defendant’s
business in Florida, defendant’s only further contact with
plaintiff concerned the dissatisfaction that led to the instant
lawsuit. There was no ongoing business relationship.” (Shisler,
supra, 146 Cal.App.4th at pp. 1261-1262.) Shisler rejected
plaintiff’s claim “that defendant’s use of fax, telephone, United
States mail, e-mail and its ‘interactive’ Web site to communicate
with plaintiff and negotiate the sale of the vehicle is sufficient to
establish . . . [that defendant] ‘“purposefully and voluntarily
direct[ed] [its] activities toward the forum so that [it] should
expect, by virtue of the benefit [it] receive[d], to be subject to the
court’s jurisdiction based on” [its] contacts with the forum.’” (Id.
at p. 1260.)
As in Shisler, here respondent did not contact or target
appellant with the intention of inducing him to purchase the
Liftkar. Appellant contacted respondent by telephoning
Carroccio. Respondent did not “reach[] out to California in search
of this or any other business opportunity.” (Shisler, supra, 146
Cal.App.4th at p. 1262.) Appellant reached out to respondent.
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The sale of the Liftkar was “a one-time transaction. . . . There
was no ongoing business relationship.” (Id. at pp. 1261-1262.)
The evidence supporting the absence of minimum contacts
is stronger here than in Shisler. Unlike the defendant in Shisler,
respondent did not negotiate the sale of the Liftkar. The sale was
negotiated by an independent dealer in Massachusetts.
Moreover, appellant did not pay respondent, and he did not take
delivery of the Liftkar in California. Appellant paid the
independent dealer, who trained appellant’s brother and
delivered the Liftkar to the brother’s home in Massachusetts.
No Personal Jurisdiction Based on
Respondent’s Commission of Intentional Tort
Appellant argues that the trial court had personal
jurisdiction over respondent because Carroccio committed an
intentional tort (misrepresentation) that caused financial injury
to him in California. In support of his argument, appellant cites
Calder v. Jones (1984) 465 U.S. 783 (Calder). (See Integral
Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 587
[relying on Calder, court stated, “even without other contacts
with the forum state, the commission of an intentional tort that is
directed at a California resident may provide sufficient minimum
contacts to support the exercise of personal jurisdiction over the
nonresident defendant”].)
In Calder the defendants were Florida residents. In
Florida they wrote and edited a libelous article about Shirley
Jones, an entertainer and California resident. “The article was
published in [the National Enquirer,] a national magazine with a
large circulation in California.” (Calder, supra, 465 U.S. at p.
784.) The magazine’s owner was a Florida corporation with its
principal place of business in Florida. The United States
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Supreme Court concluded that California courts had personal
jurisdiction over the defendants based on the effects of the article
in California: “The allegedly libelous story concerned the
California activities of a California resident. It impugned the
professionalism of an entertainer whose television career was
centered in California. The article was drawn from California
sources, and the brunt of the harm, in terms both of respondent's
emotional distress and the injury to her professional reputation,
was suffered in California. In sum, California is the focal point
both of the story and of the harm suffered. Jurisdiction over
[defendants] is therefore proper in California based on the
‘effects’ of their Florida conduct in California.” (Id. at pp. 788-
789.) The Supreme Court further explained: Defendants’
“intentional, and allegedly tortious, actions were expressly aimed
at California. . . . Under the circumstances, [defendants] must
‘reasonably anticipate being haled into court there’ to answer for
the truth of the statements made in their article.” (Id. at pp. 789-
790.)
“Although Calder involved a libel claim, courts have
applied [Calder’s] effects test to other intentional torts . . . .”
(Pavlovich, supra, 29 Cal.4th at p. 270.) “[M]ost courts agree that
merely asserting that a defendant knew or should have known
that his intentional acts would cause harm in the forum state is
not enough to establish jurisdiction under the effects test.
[Citations.] Instead, the plaintiff must also ‘point to contacts
which demonstrate that the defendant expressly aimed its
tortious conduct at the forum . . . .’ [Citation.]” (Id. at pp. 270-
271.) In Pavlovich the California Supreme Court rejected
decisions “making the location of the harm dispositive” and
“join[ed] with those jurisdictions that require additional evidence
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of express aiming or intentional targeting.” (Id. at pp. 272-273.)
Here, appellant has not “‘point[ed] to contacts which demonstrate
that [respondent] expressly aimed its tortious conduct at
[California].’” (Id. at p. 271.) Respondent aimed its allegedly
tortious conduct at a particular individual – appellant –who
happened to reside in California. Except for appellant’s residence
in California and his telephone calls from California to Carroccio,
respondent’s conduct had nothing to do with the forum state.
The United States Supreme Court clarified the Calder
effects test in Walden, supra, 571 U.S. 277: “Calder made clear
that mere injury to a forum resident is not a sufficient connection
to the forum. Regardless of where a plaintiff lives or works, an
injury is jurisdictionally relevant only insofar as it shows that the
defendant has formed a contact with the forum State. The proper
question is not where the plaintiff experienced a particular injury
or effect but whether the defendant's conduct connects him to the
forum in a meaningful way.” (Id. at pp. 289-290.) “The crux of
Calder was that the reputation-based ‘effects’ of the alleged libel
connected the defendants to California, not just to the
plaintiff. . . . [T]he reputational injury caused by the defendants’
story would not have occurred but for the fact that the defendants
wrote an article for publication in California that was read by a
large number of California citizens. . . . In this way, the ‘effects’
caused by the defendants’ article—i.e., the injury to the plaintiff's
reputation in the estimation of the California public—connected
the defendants’ conduct to California, not just to a plaintiff who
lived there. That connection, combined with the various facts
that gave the article a California focus, sufficed to authorize the
California court’s exercise of jurisdiction.” (Id. at pp. 287-288.)
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In contrast to Calder, the effects caused by respondent’s
misrepresentation amounted to a “mere injury to a forum
resident,” which “is not a sufficient connection to the forum” for
the exercise of personal jurisdiction over respondent. (Walden,
supra, 571 U.S. at p. 290.) Appellant is the only link between
respondent and California, but “the plaintiff cannot be the only
link between the defendant and the forum. Rather, it is the
defendant's conduct that must form the necessary connection
with the forum State that is the basis for its jurisdiction over
him. . . . [A] defendant's relationship with a plaintiff or third
party, standing alone, is an insufficient basis for jurisdiction.”
(Id. at pp. 285-286.)
Disposition
The order granting respondent’s motion to quash service of
summons and dismissing the action as to respondent is affirmed.
Respondent shall recover its costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Thomas P. Anderle, Judge
Superior Court County of Ventura
______________________________
Andre L. Verdun, for Plaintiff and Appellant.
Anna Yeung, for Defendant and Respondent.