Kadow v. LG Chem CA2/1 ( 2021 )

Filed 12/16/21 Kadow v. LG Chem CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CODY KADOW, B309854
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC680355)
v.
LG CHEM, LTD.,
Defendant and Respondent.
APPEAL from an order and a judgment of the Superior
Court of Los Angeles County, H. Jay Ford III, Judge. Affirmed.
Alan Charles Dell’Ario; Levin Simes Abrams, William A.
Levin and Angela J. Nehmens for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Trevor J. Ingold;
Nelson Mullins Riley & Scarborough and Rachel Atkin Hedley for
Defendant and Respondent.
____________________________
Plaintiff Cody Kadow alleges he sustained second and third
degree burns to his leg when a rechargeable spare battery he
used for an electronic cigarette (e-cigarette) exploded in his pants
pocket while he was in a parking lot in Westwood, California.
Kadow brought suit for damages against the retailer that sold
him the spare battery in California, along with one of the
battery’s distributors, various other entities, and several Doe
defendants. Kadow later amended his complaint to substitute
respondent LG Chem, Ltd. (LG Chem), a South Korean company
that Kadow claims manufactured the battery in question, for one
of the Doe defendants. LG Chem moved to quash service of
summons for lack of personal jurisdiction, and the trial court
ultimately granted the motion. Kadow appeals from that
decision.
On appeal, Kadow bears the burden of establishing that
LG Chem has sufficient minimum contacts with this forum to
allow California’s courts to assert personal jurisdiction over
LG Chem. Kadow’s principal contention is that specific (or case-
linked) jurisdiction is proper because, although LG Chem offered
evidence that it did not authorize its batteries to be distributed to
California consumers for use in e-cigarette devices, LG Chem did
sell batteries to customers located in this state during the three-
year period preceding Kadow’s injury.
We reject this argument because Kadow failed to show that
sales of LG Chem’s batteries to original equipment
manufacturers and battery packers in California relate to
Kadow’s product liability claims for purposes of establishing
specific jurisdiction in California. Kadow’s other arguments are
unpersuasive, including his assertion that jurisdiction in
California is proper simply because no state in the country would
2
have general (or all-purpose) jurisdiction over LG Chem. Finding
no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts relevant to this appeal.
On October 18, 2017, Kadow filed an unverified complaint
for damages against Shenzhen Eigate Technology, Co., Ltd.;
UVaper, LLC; Shenzhen XTAR Electronics Co., Ltd.; Shenzhen
XTAR Technology, LLC; Hong Kong XTAR Co., Ltd.; Shenzhen
MXJO Technology Co., Ltd.; Vapeway, LLC; and Does 1
through 50.1 Kadow asserted the following causes of action:
(1) strict liability against all defendants; (2) negligence against
all defendants; (3) breach of express warranty against all
defendants; (4) breach of implied warranty against all
defendants; (5) negligent misrepresentation against all
defendants; (6) violation of the Consumer Legal Remedies Act
against defendants Shenzhen XTAR Technology, LLC and
Vapeway, LLC; and (7) violation of the Unfair Competition Law
against all defendants.
Kadow alleges that in or around mid-2015, Kadow, a
California resident, went to defendant Vapeway, LLC’s store in
Corona, California and purchased three “MXJO rechargeable
lithium-ion 18650 batteries” for use with an e-cigarette, along
1 Shenzhen Eigate Technology, Co., Ltd.; UVaper, LLC;
Shenzhen XTAR Electronics Co., Ltd.; Shenzhen XTAR
Technology, LLC; Hong Kong XTAR Co., Ltd.; Shenzhen MXJO
Technology Co., Ltd.; and Vapeway, LLC are not parties to this
appeal.
3
with an MC1 XTAR charger.2 On December 1, 2015, Kadow was
in a parking lot at the Ronald Reagan UCLA Medical Center
located in Westwood, California. An e-cigarette and one of the
18650 batteries purchased from Vapeway, LLC were in his front
left pants pocket. After Kadow got into his vehicle and closed the
door, he “saw blue sparks emanating from his pant leg and heard
what sounded like firecrackers screaming”; Kadow realized that
“his left pant leg . . . was on fire.”
Kadow opened the door and jumped out of the vehicle.
Kadow took off his pants after he saw “red and smoldering on his
left leg . . . .” At that point, he realized “[t]he battery was on the
ground next to his car and was charred and had visibly
exploded.” Kadow was later diagnosed with second and third
degree burns on his left leg. Kadow “underwent surgical removal
of the damaged, burned tissue and foreign objects (debridement
and tangential excision) and placement of a skin graft.” Kadow
has been “left physically and emotionally scarred from the
burns,” and the “injuries [he] sustained, the treatment therefor,
and the healing process were excruciatingly painful requiring
prescribed scheduled medications . . . .”
On February 15, 2019, Kadow filed a form that amended
the complaint to substitute LG Chem for Doe 31. During the
proceedings below, an LG Chem team leader attested that
2 The remainder of this paragraph and the following
paragraph summarize relevant averments from the complaint.
Additionally, as a shorthand, we refer to the 18650 lithium ion
batteries at issue as 18650 batteries.
4
“LG Chem is a South Korean company with its headquarters and
principal offices in Seoul, South Korea.”3
Although the complaint alleged that Doe 31 was “in the
business of designing, manufacturing, marketing, testing,
promoting, selling, importing, and/or distributing the . . .
18650 . . . Batteries . . . purchased by [Kadow] . . . that [are] the
subject of this lawsuit,” Kadow does not aver that LG Chem sold
him the battery that injured him. Instead, Kadow maintains
that “[a]t some point after manufacture, LG [Chem] sold the
[18650 battery] to a presently unknown distributor/reseller who
in turn sold it to another distributor, defendant Shenzhen MXJO
Technology Co., Ltd.[, which in turn] packaged it with a charger
and sold it to Kadow’s retailer, defendant Vapeway, LLC.”
The aforementioned LG Chem team leader declared that
“LG Chem does not design, manufacture, distribute, advertise, or
sell 18650 [batteries] for use by individual consumers as
replaceable, rechargeable batteries in electronic cigarette
devices.” He further attested that “LG Chem has no relationship
with [defendant] Shenzhen MXJO [Technology Co., Ltd.]”;
Shenzhen MXJO Technology Co., Ltd. appears to be a company
located in China; and “LG Chem has never authorized Shenzhen
MXJO [Technology Co., Ltd.] to advertise, distribute, or sell
LG 18650 [batteries] re-wrapped as MXJO batteries, or to
advertise, distribute, or sell LG 18650 [batteries] for use by
individual consumers as replaceable, rechargeable batteries in
3 The team leader did not identify the legal form of
LG Chem’s business enterprise (e.g., corporation, limited liability
company, etc.), nor does LG Chem supply that information in its
respondent’s brief. This omission has no impact on our
disposition of the instant appeal.
5
e-cigarette devices.” The team leader also declared that
“LG Chem has no relationship with Vapeway, LLC,
UVaper, LLC, Shenzen [sic] Eigate Technology Co., Ltd.,
Shenzhen Xtar Electronics Co., Ltd., Shenzehn [sic] XTAR
Technology, LLC, [or] Hong Kong XTAR Co., Ltd.”
On July 11, 2019, LG Chem specially appeared for the
purpose of moving to quash service of summons for lack of
personal jurisdiction. On October 2, 2019, Kadow opposed the
motion and sought leave to undertake jurisdictional discovery.
LG Chem filed its reply brief on October 8, 2019. On
October 16, 2019, the trial court found that Kadow failed to
establish personal jurisdiction over LG Chem, granted Kadow’s
request to undertake jurisdictional discovery, and continued the
hearing on the motion to quash to allow Kadow to conduct such
discovery.4
On May 5, 2020, Kadow filed a supplemental opposition to
LG Chem’s motion to quash. Also on that date, Kadow filed
copies of LG Chem’s responses to Kadow’s jurisdictional discovery
requests. As discussed in greater detail in Discussion, part B,
post, LG Chem admitted in its responses that from
December 1, 2012 to December 1, 2015, it sold 18650 batteries to
“certain specific California entities”—i.e., original equipment
4 Although the notice of ruling and the accompanying
tentative ruling adopted by the court do not identify clearly when
these rulings were issued, LG Chem claims that the trial court
made these rulings on October 16, 2019 and Kadow does not
dispute that assertion in his reply. (See Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”].)
6
manufacturers and battery packers. LG Chem filed a
supplemental reply brief on August 6, 2020. On August 13, 2020,
the trial court denied LG Chem’s motion to quash.
On August 24, 2020, LG Chem filed a petition for a writ of
mandate directing the trial court to vacate its order denying the
motion to quash and enter a new order granting the motion.5
On October 6, 2020, we issued a notice pursuant to Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, wherein we
informed the trial court of our intention to issue a peremptory
writ in the first instance, and permitted that court to “avoid the
issuance of” this peremptory writ by vacating the order denying
LG Chem’s motion to quash service of summons and instead
issuing an order granting that motion (Palma notice). In the
notice, “we agree[d] with [LG Chem] that . . . Kadow did not meet
his burden to establish the court’s specific jurisdiction[,]” and we
stated that “[i]t does not matter for purposes of specific
jurisdiction that [LG Chem] extensively sells its 18650 batteries
into the California market, because this suit does not arise out of
or relate to those sales or [LG Chem’s] contacts with this forum.”
On October 7, 2020, the trial court set a hearing on an
order to show cause why the court should not vacate its order
denying LG Chem’s motion to quash and enter a new order
granting the motion in light of our Palma notice. On
October 19, 2020, Kadow filed a response to the court’s order
to show cause, and LG Chem filed a reply to Kadow’s response
on October 23, 2020.
5 We, sua sponte, take judicial notice of LG Chem’s writ
petition. (Evid. Code, §§ 452, subd. (d), 459.)
7
On October 26, 2020, the trial court held a hearing on its
order to show cause, vacated its prior order denying LG Chem’s
motion to quash, and granted LG Chem’s motion. On
November 13, 2020, the trial court issued an order that
(1) reiterated its prior rulings (a) vacating its order that denied
LG Chem’s motion to quash and (b) entering a new order
granting the motion; and (2) dismissed LG Chem from the action
in accordance with its ruling on LG Chem’s motion to quash.
Kadow timely appealed.6
6 Although Kadow’s notice of appeal does not explicitly
seek review of the November 13, 2020 order dismissing LG Chem
from the action, Kadow’s opening brief indicates he challenges
the dismissal order as well. Because the order of dismissal is
wholly derivative of the trial court’s order granting the motion to
quash, we liberally construe the notice of appeal as covering both
orders. (See In re J.F. (2019) 39 Cal.App.5th 70, 75 [“A notice of
appeal shall be ‘ “liberally construed so as to protect the right of
appeal if it is reasonably clear what [the] appellant was trying to
appeal from, and where the respondent could not possibly have
been misled or prejudiced.” ’ [Citations.]”]; see also Code Civ.
Proc., § 904.1, subds. (a)(1) & (a)(3) [orders to quash service of
summons and judgments are both appealable].) Furthermore,
because we find no error in the trial court’s ruling granting the
motion to quash, and Kadow does not claim that the dismissal
order would need to be reversed absent any defect in the order
quashing service of summons, we affirm the dismissal order as
well. (See Discussion, part A, post [noting that trial court orders
are presumed correct]; Disposition, post [affirming the order
quashing the service of summons].)
8
DISCUSSION
A. Applicable Law
“California’s long-arm statute permits a court to exercise
personal jurisdiction on any basis consistent with state or
federal constitutional principles.” (Rivelli v. Hemm (2021)
67 Cal.App.5th 380, 391 (Rivelli), citing, inter alia, Code Civ.
Proc., § 410.10.) “ ‘The exercise of jurisdiction over a nonresident
defendant comports with these Constitutions “if the defendant
has such minimum contacts with the state that the assertion of
jurisdiction does not violate ‘ “traditional notions of fair play and
substantial justice.” ’ ” [Citation.]’ [Citation.]” (Jayone Foods,
Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543,
552 (Jayone Foods, Inc.).)
There are “two kinds of personal jurisdiction: general
(sometimes called all-purpose) jurisdiction and specific
(sometimes called case-linked) jurisdiction.” (Ford Motor Co. v.
Mont. Eighth Judicial Dist. Court (2021) 141 S.Ct. 1017, 1024
(Ford Motor Co.).) “General jurisdiction . . . extends to ‘any and
all claims’ brought against a defendant,” and is available only in
a state where “a defendant is ‘essentially at home’ . . . .
[Citation.]”7 (See Ford Motor Co., at p. 1024.) Conversely,
specific jurisdiction “covers defendants less intimately connected
with a State, but only as to a narrower class of claims.” (Ibid.)
7 Kadow concedes that California does not have general
jurisdiction over LG Chem. (Artal v. Allen (2003) 111
Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and argument . . . are
reliable indications of a party’s position on the facts as well as the
law, and a reviewing court may make use of statements therein
as admissions against the party. [Citations.]’ [Citations.]”].)
9
“ ‘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” ’ ” [citation.]’ [Citation.]” (Jayone Foods, Inc.,
supra, 31 Cal.App.5th at p. 553.)
These limitations on specific jurisdiction “derive from and
reflect two sets of values—treating defendants fairly and
protecting ‘interstate federalism.’ [Citation.]” (See Ford Motor
Co., supra, 141 S.Ct. at p. 1025.) The “doctrine . . . provides
defendants with ‘fair warning’—knowledge that ‘a particular
activity may subject [it] to the jurisdiction of a foreign sovereign.’
[Citations.]” (See ibid.) “The law of specific jurisdiction [also]
seeks to ensure that States with ‘little legitimate interest’ in a
suit do not encroach on States more affected by the controversy.”
(Ibid.)
The first prong of the specific jurisdiction analysis requires
the defendant to have “take[n] ‘some act by which [it]
purposefully avail[ed] itself of the privilege of conducting
activities within the forum State.’ [Citation.] The contacts must
be the defendant’s own choice and not ‘random, isolated, or
fortuitous.’ [Citation.] They must show that the defendant
deliberately ‘reached out beyond’ its home—by, for example,
‘exploi[ting] a market’ in the forum State or entering a
contractual relationship centered there.”8 (See Ford Motor Co.,
supra, 141 S.Ct. at pp. 1024–1025.)
8 The United States Supreme Court “has not agreed on”
the precise circumstances under which a manufacturer’s or
10
Because the doctrine of specific jurisdiction is intended “to
adequately protect defendants foreign to a forum,” “the phrase
‘relate to’ incorporates real limits” and “does not mean anything
goes.” (See Ford Motor Co., supra, 141 S.Ct. at p. 1026.) “A
defendant can thus ‘structure [its] primary conduct’ to lessen or
avoid exposure to a given State’s courts.” (See id. at p. 1025.)
For instance, if a car manufacturer’s contacts with the forum
state provide it with “ ‘clear notice’ of its exposure in that State to
suits arising from local accidents involving its cars,” then “[i]t
could ‘act to alleviate the risk of burdensome litigation by
procuring insurance, passing the expected costs on to customers,
or, if the risks are [still] too great, severing its connection with
the State.’ [Citation.]” (See id. at p. 1027.)
A defendant may move “[t]o quash service of summons on
the ground of lack of jurisdiction of the court over him or her.”
(Code Civ. Proc., § 418.10, subd. (a)(1).) “ ‘ “When a defendant
moves to quash service of process” [on jurisdictional grounds],
“the plaintiff has the initial burden of demonstrating facts
justifying the exercise of jurisdiction.” [Citation.]’ . . . [Citation.]”
distributor’s placement of a product into the stream of commerce
is sufficient to give rise to purposeful availment—i.e., whether
the fact that “the defendant’s products knowingly and regularly
flowed into the forum state or were part of a regular course of
sale in the forum state” would be sufficient, or whether
“ ‘[a]dditional conduct of the defendant . . . indicat[ive of] an
intent or purpose to serve the market in the forum State” is also
necessary. (See Bombardier Recreational Products, Inc. v. Dow
Chemical Canada ULC (2013) 216 Cal.App.4th 591, 598–602
[discussing the Supreme Court Justices’ differing views on this
question].) We need not resolve this issue to dispose of the
instant appeal.
11
(Jayone Foods, Inc., supra, 31 Cal.App.5th at p. 553.) “To meet
this burden, . . . . [a] plaintiff must support its allegations with
‘competent evidence of jurisdictional facts. Allegations in an
unverified complaint are insufficient to satisfy this burden of
proof.’ [Citation.]” (Rivelli, supra, 67 Cal.App.5th at p. 393.)
If the plaintiff establishes “the first two requirements [of
specific jurisdiction] (i.e., that the defendant has purposefully
availed itself of the forum and the plaintiff’s claims relate to or
arise out of the defendant’s forum-related contacts)” “by a
preponderance of the evidence[,] . . . the burden shifts to the
defendant to demonstrate that the exercise of jurisdiction would
be unreasonable.” (See Rivelli, supra, 67 Cal.App.5th at p. 393.)
“The [specific] jurisdictional analysis is intensely fact-specific.
[Citation.] Indeed, the test for personal jurisdiction ‘ “is not
susceptible of mechanical application; rather, the facts of each
case must be weighed to determine whether the requisite
‘affiliating circumstances’ are present.” ’ [Citations.]” (See id.
at pp. 392–393.)
“On appeal, we independently review the trial court’s legal
conclusions as to whether a defendant’s contacts with California
justify requiring that defendant to mount a defense in the forum.
[Citation.] If the facts giving rise to jurisdiction are conflicting,
we will not disturb the trial court’s express or implied factual
determinations where supported by substantial evidence.
[Citation.]” (Rivelli, supra, 67 Cal.App.5th at p. 393.)
Additionally, “ ‘ “[a] judgment or order of the lower court is
presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. . . .” ’ [Citation.]” (See
Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 787.)
12
The appellant bears the burden of rebutting this presumption of
correctness, regardless of the applicable standard of review. (See
Orange County Water Dist. v. Sabic Innovative Plastics US, LLC
(2017) 14 Cal.App.5th 343, 368, 399 [indicating that an appellant
must affirmatively show the trial court erred even if the de novo
standard of review applies].)
B. Kadow Fails to Establish His Claims Relate to
LG Chem’s Contacts with California
Kadow maintains that specific jurisdiction over LG Chem is
proper because “LG [Chem] sells and distributes its 18650
[batteries] in California.” In particular, Kadow contends
LG Chem’s 18650 batteries enter the United States through
California ports, “transit through California[,] and . . . reach the
ultimate purchasers located here.” He further asserts that “[f]or
the time period beginning 12/1/12 to 12/1/15, LG [Chem] entered
into and maintained business relationships with California based
customers as to the sale of LG lithium-ion 18650 batteries” and
“derived revenue from these relationships.”9 Although Kadow
does not argue that, for the purposes of specific jurisdiction, his
claims “arise out of” the aforesaid business relationships
LG Chem had with California based customers during that
9 To support the assertions stated in the textual sentence
accompanying this footnote, Kadow cites excerpts of the reply
brief LG Chem filed during the proceedings below. The excerpts
Kadow cites, however, do not describe LG Chem’s business
relationships with California customers, but they instead
advance other arguments supporting LG Chem’s position that
Kadow failed to establish that specific jurisdiction is proper (e.g.,
Kadow may not impute forum contacts from another business
enterprise to LG Chem).
13
timeframe, Kadow does contend his suit is “related to” those
contacts with the forum.
Kadow’s description of the evidence concerning LG Chem’s
contacts with California is vague and sometimes misleading.
Although LG Chem admitted in its discovery responses that it
“shipped LG lithium-ion 18650 batteries directly to California
entities that arrived in California through California ports” from
December 1, 2012 to December 1, 2015, LG Chem did not admit
that it “intended and expected LG lithium-ion 18650 batteries to
be purchased and used by California . . . consumers” during that
timeframe. Rather, LG Chem admitted only that “[f]or the time
period 12/1/12 to 12/1/15, LG Chem’s customers in California
were exclusively original equipment manufacturers and battery
packers, which are sophisticated users who were informed that
the cells were intended to be encased with protective
circuitry . . . .” LG Chem also stated the batteries “were not
intended nor authorized to be sold directly to individual
consumers for use as standalone batteries” and that LG Chem
“was not aware that any of its 18650 lithium ion battery cells
were being sold to or used by individual customers as standalone
replacement batteries in e-cigarette devices in California.”
On appeal, LG Chem once again emphasizes that it did not
authorize its 18650 batteries to be sold to California consumers
as standalone replacement batteries in e-cigarette devices, and
LG Chem insists that Kadow’s claims do not arise out of or relate
to “its sales of 18650 battery cells to sophisticated customers in
California . . . .”
Assuming arguendo Kadow could potentially satisfy the
relatedness prong even though LG Chem did not authorize its
18650 batteries to be sold to California consumers as standalone
14
batteries used in e-cigarettes, Kadow still has not shown that
personal jurisdiction over LG Chem is proper.
We acknowledge that LG Chem purposefully availed itself
of the privilege of conducting activities in California by shipping
18650 batteries to “original equipment manufacturers and
battery packers” in California. (See Ford Motor Co., supra,
141 S.Ct. at pp. 1024–1025 [“The contacts needed for [specific
jurisdiction] often go by the name ‘purposeful availment.’
[Citation.] . . . They must show that the defendant deliberately
‘reached out beyond its home—by, for example, ‘exploi[ting] a
market’ in the forum State or entering a contractual relationship
centered there.”].) That being said, Kadow still does not explain
how these contacts would satisfy the second prong of a specific
jurisdiction analysis, to wit, are the contacts “related enough to
[Kadow’s] suit[]” to give rise to personal jurisdiction? (See id. at
p. 1031.)
In fact, Kadow’s briefing does not even identify or describe
the operations of the “California based customers” to which
LG Chem shipped its 18650 batteries. Kadow cites his opposition
to the motion to quash for the proposition that “[p]rior iterations
of [LG Chem’s] website include a list of its ‘major customers’
which include worldwide brands such as LG Electronics, Apple
(headquartered in Cupertino), Dell, Hewlett Packard
(headquartered in Palo Alto), Bosch, Asus, Lenovo, Stanley
Black&Decker, and others.” Kadow’s trial court briefing is not
evidence of LG Chem’s forum-related contacts. (See Fierro v.
Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5
[holding that “ ‘unsworn averments in a memorandum of law
prepared by counsel do not constitute evidence’ ”].) In any event,
this excerpt from Kadow’s opposition does not clarify whether
15
these customers are the original equipment manufacturers and
battery packers to which LG Chem shipped the 18650 batteries.
Without more detailed evidence regarding the nature and
extent of LG Chem’s forum contacts, we cannot conclude that
LG Chem had “ ‘fair warning’ ” that its sales to original
equipment manufacturers and battery packers would subject it to
our state’s jurisdiction for the instant product liability action.
(See Ford Motor Co., supra, 141 S.Ct. at p. 1025.) Kadow’s
argument thus falls far short of satisfying his burden in this
“intensely fact-specific” jurisdictional analysis.10 (See Rivelli,
supra, 67 Cal.App.5th at p. 392.)
Kadow nonetheless suggests that LG Chem’s 18650
batteries reach consumers located in California. Specifically, he
observes that an excerpt from LG Chem’s website indicates that
“[s]tandard-sized cylindrical batteries are manufactured for
‘Laptop, powerbank, power tool, electric bicycle, electric
motorcycle, vacuum cleaner, [and] garden tool’ uses.” From this
website excerpt, Kadow concludes “California jurisdiction exists
over claims involving an exploding 18650 [battery] in a Dell
laptop . . . .” Conspicuously absent from Kadow’s briefing is a
citation to any evidence showing that LG Chem’s 18650 batteries
have been sold to California consumers in Dell laptop computers.
This omission is fatal. (See Rivelli, supra, 67 Cal.App.5th at p.
393 [“[On a motion to quash, a] plaintiff must support its
allegations with ‘competent evidence of jurisdictional facts. . . .’
[Citation.]”].)
10Kadow does not argue on appeal that the trial court
should have permitted him to undertake further discovery on
LG Chem’s forum contacts.
16
Kadow claims that “[t]he key question is whether
LG [Chem] ‘serves a market’ for the 18650 [battery] in
California.” (Italics added.) It appears that Kadow relies upon
the Ford Motor Co. case for this proposition, given that he
includes the following quotation from the decision in his briefing:
“ ‘[T]his Court has stated specific jurisdiction attaches in cases
identical to the ones here—when a company like Ford serves a
market for a product in the forum State and the product
malfunctions there.’ ” (Quoting Ford Motor Co., supra, 141 S.Ct.
at p. 1027.)
Kadow’s reliance on Ford Motor Co. is unavailing. Under
Kadow’s reading of the case, personal jurisdiction over a
consumer’s product liability claim would potentially be proper in
any and all jurisdictions that are part of that product’s global
supply chain. Yet this sweeping theory of specific jurisdiction
would run afoul of Ford Motor Co. because the theory would
eviscerate the “real limits” imposed by the relatedness prong, and
it would also interfere with the due process clause’s objective of
allowing a defendant to “ ‘structure [its] primary conduct’ to
lessen or avoid exposure to a given State’s courts.” (See Ford
Motor Co., supra, 141 S.Ct. at pp. 1025–1026.)
Despite Kadow’s arguments to the contrary, Ford Motor Co.
is not like the case before us. Far from it. In Ford Motor Co., a
driver of a Ford Explorer was injured in Montana when a tire
tread separated from a rear tire on the vehicle, and a passenger
in a Ford Crown Victoria was injured in a car accident in
Minnesota when the passenger’s airbag did not deploy. (See Ford
Motor Co., supra, 141 S.Ct. at p. 1023.) Although the particular
vehicles that allegedly malfunctioned were not designed,
manufactured, or sold in Montana or Minnesota, Ford had “for
17
many years” advertised, serviced, and sold (directly or through its
intermediaries) (a) Ford Explorers to consumers in Montana and
(b) Crown Victorias to consumers in Minnesota. (See id. at
pp. 1023–1024, 1028.) The high court found that because “Ford
had systematically served a market in Montana and Minnesota
for the very vehicles that the plaintiffs allege malfunctioned and
injured them in those States,” “the connection between the
plaintiffs’ claims and Ford’s activities in those States . . . [was]
close enough to support specific jurisdiction.” (See id. at
pp. 1028, 1032.) The Ford Motor Co. court further declared that
“[a]n automaker regularly marketing a vehicle in a State . . . has
‘clear notice’ that it will be subject to jurisdiction in the State’s
courts when the product malfunctions there (regardless where it
was first sold).” (See id. at p. 1030.)
In contrast, as we noted earlier in this part, Kadow has not
offered any evidence showing the 18650 batteries LG Chem
supplies to sophisticated customers ever reach California
consumers. Furthermore, whereas a car manufacturer would
expect that if it systematically advertised, serviced, and sold a
vehicle in a state, it could be haled into that state’s courts for
suits arising from accidents involving that type of vehicle, Kadow
has not shown that LG Chem had clear notice that its sales of
18650 batteries to certain entities in this forum would subject
LG Chem to jurisdiction for Kadow’s product liability suit.
Because Kadow does not offer any evidence describing the forum
activities of the original equipment manufacturers and battery
packers that acquired these batteries, we have no means of
determining whether the risks of litigation LG Chem reasonably
anticipated from these forum sales in any way resembled the
product liability claims Kadow asserts for personal injuries
18
resulting from an exploding spare battery he used for an e-
cigarette device.
In sum, Kadow has not demonstrated that his claims
against LG Chem are sufficiently related to its forum contacts to
give rise to specific jurisdiction.
C. Kadow’s Remaining Arguments Are Unpersuasive
Kadow contends that a federal district court in a product
liability action concerning one of LG Chem’s 18650 batteries
found that California had personal jurisdiction over LG Chem
notwithstanding its assertions that the battery reached the
plaintiff through an unauthorized distribution channel, the
battery was packaged in an unauthorized manner, and LG Chem
had not authorized the battery to be used in e-cigarettes. (Citing
Berven v. LG Chem, Ltd. (E.D. Cal., Apr. 18, 2019, No. 1:18-CV-
01542-DAD-EPG) [2019 WL 1746083, at p. *11] (Berven), report
and recommendation adopted (E.D. Cal., Sept. 26, 2019, No. 1:18-
CV-01542-DAD-EPG) [2019 WL 4687080, at pp. *2–3].)
In Berven, the plaintiff alleged she had been injured in
California when a 18650 battery manufactured by LG Chem
exploded in her e-cigarette. (See Berven, supra, [2019 WL
1746083, at p. *1].) The federal district court denied LG Chem’s
motion to dismiss for lack of personal jurisdiction and granted
the plaintiff’s motion for leave to amend the complaint to add
jurisdictional allegations. (See id. at pp. *1, *14.)
The proposed amended pleading at issue in Berven averred
that LG Chem had provided lithium ion batteries to distributors
in California with the reasonable expectation that they would be
used in this state, and that LG Chem also sold 18650 batteries
directly to consumers in California. (See Berven, supra, [2019
WL 1746083, at pp. *1–2, *6, *9 & fn. 1].) The proposed
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amendment further averred that LG Chem sold substandard
18650 batteries to distributors with the expectation that such
batteries would “end up in the electronic cigarette market in
California.” (See id. at p. *3.) The district court assumed that
these allegations were true for the purposes of the motion to
dismiss and concluded they established California had specific
jurisdiction over LG Chem under a stream of commerce theory.
(See id. at pp. *7, *9–11, *14.) Berven observed that on a motion
to dismiss for lack of personal jurisdiction in federal court,
“[u]ncontroverted allegations in the complaint must be taken as
true,” and that “for purposes of [LG Chem’s] motion,” “LG Chem
d[id] not contest . . . the plethora of contacts alleged in the
amended complaint.” (See id. at pp. *7, *9.)
In contrast, our precedents require Kadow to offer
competent evidence in order to defeat LG Chem’s motion to
quash. (Rivelli, supra, 67 Cal.App.5th at p. 393 [“[P]laintiff must
do more than make allegations” but instead, “must support its
allegations with ‘competent evidence of jurisdictional facts. . . .’
[Citation.]”].) As explicated in Discussion, part B, ante, Kadow
has not directed us to any competent evidence showing that
LG Chem intended or expected its 18650 batteries to reach
consumers in California. Rather, LG Chem’s discovery responses
show only that it sold the batteries to original equipment
manufacturers and battery packers in California. (See
Discussion, part B, ante.) Thus, Berven is of no assistance to
Kadow.
Further, Kadow suggests that the trial court somehow has
personal jurisdiction over LG Chem because Kadow cannot assert
his claims against that entity in any state in this country.
Specifically, Kadow repeatedly declares that “Kadow does not . . .
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have a domestic forum where general jurisdiction over
LG [Chem] exists” and “[f]airness considerations apply to the
plaintiffs, too.” Kadow’s argument overlooks the fact that the
doctrine of specific jurisdiction is intended primarily to safeguard
the due process rights of the defendant being haled into court and
not the interests of the plaintiff in obtaining a convenient forum.
(See Ford Motor Co., supra, 141 S.Ct. at pp. 1024–1025 [“The
Fourteenth Amendment’s Due Process Clause limits a state
court’s power to exercise jurisdiction over a defendant. . . . [¶] . . .
[¶] These rules [concerning specific jurisdiction] reflect two sets of
values—treating defendants fairly and protecting ‘interstate
federalism.’ [Citations.]”]; Walden v. Fiore (2014) 571 U.S. 277,
284 [“Due process limits on the State’s adjudicative authority
principally protect the liberty of the nonresident defendant—not
the convenience of plaintiffs or third parties. [Citation.] We have
consistently rejected attempts to satisfy the defendant-focused
‘minimum contacts’ inquiry by demonstrating contacts between
the plaintiff (or third parties) and the forum State.
[Citations.]”].)
Furthermore, although Kadow’s argument is not altogether
clear, Kadow seems to rely on Justice Alito’s and Justice
Gorsuch’s respective concurring opinions from the Ford Motor Co.
decision for the proposition that jurisdiction is proper because
LG Chem conducts “extensive business” operations in the
United States, including in California; Kadow is a California
resident; Kadow purchased the battery at issue in California; and
Kadow was injured in this state. (Citing Ford Motor Co., supra,
141 S.Ct. at p. 1032 (conc. opn. of Alito, J.); id. at pp. 1036–1039
(conc. opn. of Gorsuch, J.).)
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We reject Kadow’s argument insofar as he asks us to
abandon binding precedent requiring us to undertake a minimum
contacts analysis to assess personal jurisdiction. (See People v.
Amadio (1971) 22 Cal.App.3d 7, 14 [“[A] concurring opinion is not
the opinion of the court and is not binding.”]; Karuk Tribe of
Northern California v. California Regional Water Quality Control
Bd., North Coast Region (2010) 183 Cal.App.4th 330, 352 [“[W]e
are bound by decisions of the United States Supreme Court in the
construction and application of federal law.”]; see, e.g., Ford
Motor Co., supra, 141 S.Ct. at pp. 1024–1025 (maj. opn. of Kagan,
J.) [elucidating the minimum contacts framework].)
To the extent Kadow claims that the approaches
undertaken in these concurring opinions are nevertheless
consistent with, and persuasive authority regarding the proper
application of, the minimum contacts test, Kadow fails cogently
to argue that point. (See Hodjat v. State Farm Mutual
Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 (Hodjat) [“[A]n
appellant is required to not only cite to valid legal authority, but
also explain how it applies in his case.”]; Cahill v. San Diego Gas
& Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill)
[“ ‘Appellate briefs must provide argument and legal authority for
the positions taken. . . . The absence of cogent legal argument or
citation to authority allows this court to treat the contention as
waived.’ [Citations.]”].)
Kadow also claims that “[t]he use of 18650’s in e-cigarettes
is so well known to LG [Chem]” that it “warns about the use on
its website.” Kadow does not claim that these warnings in any
way indicate that LG Chem was aware that its batteries reached
e-cigarette consumers in California, let alone that such
transactions were the product of LG Chem’s efforts to conduct
22
business in this state. Accordingly, Kadow has failed to show
that LG Chem’s admonitions regarding e-cigarette use have any
bearing on our jurisdictional analysis. (See Ford Motor Co.,
supra, 141 S.Ct. at pp. 1024–1025 [“[A] tribunal’s authority
depends on the defendant’s having such ‘contacts’ with the forum
State that ‘the maintenance of the suit’ is ‘reasonable, in the
context of our federal system of government,’ and ‘does not offend
traditional notions of fair play and substantial justice.’
[Citation.] . . . . [¶] . . . [¶] . . . The contacts must be the
defendant’s own choice and not ‘random, isolated, or fortuitous[,]’
[citation],” italics added].)
Lastly, Kadow claims that LG Chem “has ‘fair warning’
that it could be subject to suit here in claims arising from its
18650 batteries” because it “has been held to answer in at least
two California Superior Courts” and “Division Seven, the Third
District and the Supreme Court have declined to review and
overturn these decisions.” Kadow’s failure to provide any
description of these other cases forecloses his reliance upon them.
(See Hodjat, supra, 211 Cal.App.4th at p. 10; Cahill, supra,
194 Cal.App.4th at p. 956; see also Rivelli, supra, 67 Cal.App.5th
at p. 392 [“The [specific] jurisdictional analysis is intensely fact-
specific.”].) We also note that Kadow’s reliance upon trial court
orders is improper. (See Bolanos v. Superior Court (2008)
169 Cal.App.4th 744, 761 [“To the extent [the petitioner] offers [a
trial court order] as legal authority supporting her position, the
request is improper. . . . [A] written trial court ruling has no
precedential value.”].)
Because Kadow fails to show the trial court erred in
granting LG Chem’s motion to quash, we do not disturb that
ruling.
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DISPOSITION
We affirm the order granting respondent LG Chem, Ltd.’s
(LG Chem’s) motion to quash service of summons and the
judgment dismissing LG Chem from the action. LG Chem is
entitled to its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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