Strasner v. Touchstone Wireless Repair and Logistics , 5 Cal. App. 5th 215 ( 2016 )

Filed 11/4/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
M. STRASNER, D068865
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2014-00013884-
CU-PO-CTL)
TOUCHSTONE WIRELESS REPAIR AND
LOGISTICS, LP et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Affirmed.
Kristensen Weisberg, John P. Kristensen and David L. Weisberg; Law Office of
Gary Simms and Gary L. Simms for Plaintiff and Appellant.
Slater Hersey & Lieberman, Mark K. Slater, Elise K. Sara and Neil J. Cooper for
Defendants and Respondents.
M. Strasner sued out-of-state defendants Brightpoint, Inc. (Brightpoint),
Brightpoint North America, LP (BPNA), Touchstone Wireless Repair and Logistics, LP
(Touchstone) and Touchstone Acquisition, LLC (TAL) (collectively, Defendants) for
injuries she suffered when a Touchstone employee allegedly uploaded a private
photograph of Strasner to her Facebook page from a mobile telephone she had returned to
T-Mobile. The court granted Defendants' motion to quash service of the summons and
amended complaint for lack of personal jurisdiction. Strasner appeals, contending she
made a sufficient showing of Defendants' contacts with California, both directly and
through their California parent corporation, to subject them to personal jurisdiction. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Strasner entered into a wireless services contract with T-Mobile in 2010, in Santa
Monica. Strasner's account was associated with a Los Angeles telephone number. In
2012, while living in New York, Strasner terminated her contract with T-Mobile and
returned her mobile telephone to a T-Mobile store in New York. An employee at the
store claimed to have erased all of Strasner's personal information from the mobile
telephone, but the information allegedly remained. T-Mobile sent the telephone to a
facility in Texas, operated by Touchstone, for refurbishing. Strasner alleges that while
her former mobile telephone was at the facility, an employee viewed Strasner's personal
data and used the telephone to upload a sensitive photograph of Strasner to her Facebook
page and newsfeed. In May 2012, Strasner learned of the photograph's posting and
immediately removed it, but several people had already seen the photograph. As a result,
Strasner suffered severe emotional distress and embarrassment.
Strasner moved back to California in 2013 and sued T-Mobile and various Doe
defendants in 2014, alleging (among other things) invasion of privacy, negligence, and
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violation of California Business and Professions Code section 17200 et seq. In 2015, she
amended the complaint to name Ingram Micro, Inc. (Ingram), a California corporation,
and she further amended the complaint to substitute Defendants for fictitiously named
Does. Defendants filed a motion to quash service of the summons and amended
complaint against them for lack of personal jurisdiction. Ingram did not contest personal
jurisdiction.
In support of their motion to quash, Defendants submitted a sworn declaration
from the senior director of Brightpoint. According to the director, by 2012, Touchstone,
TAL and BPNA were all indirect wholly owned subsidiaries of Ingram, but each
remained a separate legal entity and Ingram never assumed liability for any of them. As
to each Defendant's contacts with California, the declaration established as follows: (1)
Brightpoint was not incorporated in California and did not have its principal place of
business here; it did not own property or have an office in California in 2012 or 2015, and
was not currently registered to do business in California; (2) BPNA did business as
Ingram Micro Mobility, was not incorporated in California and did not have its principal
place of business here; it did not own property or have an office in California in 2012 or
2015, and was not registered to do business in California in 2012 or 2015, it had some
California customers, but derived only a small percentage of its domestic revenue from
those customers and it did not play any role in Touchstone's refurbishing of mobile
telephones for T-Mobile; (3) TAL was not incorporated in California and did not have its
principal place of business here, it did not conduct business, own property or have an
office in California in 2012 or 2015, and was not registered to do business in California
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in 2012 or 2015; and (4) Touchstone was not incorporated in California and did not have
its principal place of business here, it did not employ persons, conduct business, own
property or have an office in California in 2012 or 2015, and was not registered to do
business in California in 2012 or 2015. At all relevant times, Touchstone had a contract
with T-Mobile, whereby it provided logistics and repair services to T-Mobile, including
refurbishing mobile telephones, at its facility in Texas. Touchstone had a single customer
in California (not T-Mobile), for whom it provided services at its Texas facility, but
Touchstone derived only a small percentage of its United States revenue from the
California customer.
In opposition to Defendants' motion to quash, Strasner contended California could
assert general jurisdiction over Defendants through their California-based parent
corporation, Ingram, under an agency theory. She further contended Touchstone and
Brightpoint were subject to specific jurisdiction in California, as a result of the
Touchstone employee's intentional posting to Strasner's Facebook account, because the
impact of the posting was aimed at her Facebook friends, the vast majority of whom are
from California. She further emphasized Touchstone's connections to California through
Ingram, Touchstone's California expenditures, and Touchstone's and Brightpoint's
"integration" with Ingram but did not describe how those contacts related to the litigation
or established specific jurisdiction. Strasner also submitted a declaration, attesting the
vast majority of her Facebook friends reside in California and it would be apparent to
anyone who accessed her Facebook account that any posting to her account "would be
aimed primarily at those California residents."
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In addition, Strasner had taken jurisdictional discovery and presented the
following evidence with her opposition to Defendants' motion to quash: (1) Brightpoint's
revenue was reported separately by parent Ingram in 2012, but by 2014, Ingram had
begun consolidated reporting of Brightpoint's financials, Brightpoint no longer was
publicly traded and ceased filing SEC reports, Brightpoint no longer had its own website
and its trademarks were all owned by Ingram, and some managers at Ingram oversaw
Brightpoint managers in human resources and accounting, but were not engaged in
Brightpoint's day-to-day operations; (2) BPNA packaged and distributed mobile retail
kits for wireless service providers; (3) TAL's president signed a contract with T-Mobile
on behalf of Touchstone and the same person described himself as the president of
"North America Mobility at Ingram Micro" on his LinkedIn page; and (4) Touchstone
refurbished approximately 80 percent of the T-Mobile telephones it received and sent
approximately 90 to 95 percent of the refurbished telephones to Brightpoint to be shipped
to T-Mobile or T-Mobile customers, it made payments to vendors in California in 2014,
and its former website redirects users to an Ingram-branded website. Strasner also
provided SEC filings in which Ingram referred to itself and its subsidiaries as working
together, "combining" forces and offering "end-to-end" supply chain services and "in-
house repair" operations.
The trial court granted Defendants' motion to quash, finding Strasner had failed to
demonstrate facts to support the exercise of general or specific jurisdiction as to any of
the Defendants.
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DISCUSSION
I. General Legal Principles and Standard of Review
California courts may exercise jurisdiction over a nonresident on any basis
consistent with the federal or state Constitution. (Code Civ. Proc., § 410.10.) To
comport with federal and state due process, California may only exercise jurisdiction
when a defendant has sufficient minimum contacts with the state to satisfy " 'traditional
notions of fair play and substantial justice.' " (International Shoe Co. v. Washington
(1945) 326 U.S. 310, 316; Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal. 4th
1054, 1061 (Snowney).) Under the minimum contacts test, we examine the quality and
nature of a defendant's action to determine whether requiring him to submit to
jurisdiction in California is reasonable and fair. (Snowney, at p. 1061.)
When a defendant challenges jurisdiction through a motion to quash, the plaintiff
bears the burden to demonstrate facts, as to each nonresident defendant, justifying the
exercise of jurisdiction by a preponderance of evidence. (In re Automobile Antitrust
Cases I & II (2005) 135 Cal. App. 4th 100, 110 (Automobile Antitrust).) The plaintiff
must provide specific evidentiary facts, through affidavits and other authenticated
documents, sufficient to allow the court to independently conclude whether jurisdiction is
appropriate. (Ibid.) The plaintiff cannot rely on allegations in an unverified complaint or
vague and conclusory assertions of ultimate facts. (Ibid.)
On review, we apply the substantial evidence standard to the trial court's factual
determinations regarding conflicting evidence. (Automobile Antitrust, supra, 135
Cal.App.4th pp. 113-114.) However, we independently review the trial court's
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conclusions regarding the legal significance of the facts. (Buchanan v. Soto (2015) 241
Cal. App. 4th 1353, 1362.) When the facts are undisputed, the issue of jurisdiction is
purely a question of law. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th
434, 449 (Vons).)
II. General Jurisdiction
A. Legal Principles
Personal jurisdiction may be general (all purpose) or specific. The standard for
general jurisdiction is considerably more stringent than that for specific jurisdiction.
(Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal. App. 4th
1447, 1455.) A defendant is subject to general jurisdiction when it has substantial,
continuous and systematic contacts in the forum state, i.e., its contacts with the forum are
so wide-ranging that they take the place of a physical presence in the state. (Vons, supra,
14 Cal.4th at pp. 445-446; Daimler AG v. Bauman (2014) 571 U.S. [134 S. Ct. 746,
754] (Daimler) [court may assert general jurisdiction over a nonresident corporation for
all purposes when the corporation's contacts with the state are so continuous and
systematic that it can be considered "at home" there].) In assessing a defendant's contacts
with the forum for purposes of general jurisdiction, we look at the contacts as they
existed from the time the alleged conduct occurred to the time of service of summons.
(DVI, Inc. v. Superior Court (2002) 104 Cal. App. 4th 1080, 1100-1101 (DVI).) For a
corporation, its domicile, place of incorporation, and/or principal place of business within
a state constitute the paradigm bases for establishing general jurisdiction. (Goodyear
Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 924 (Goodyear).) A
7
defendant corporation's substantial sales in a state are insufficient to establish general
jurisdiction, as the general jurisdiction analysis turns on the nature of the defendant's
continuous corporate operations within a state. (Daimler, at p. 761.)
However, even if a defendant lacks sufficient direct contacts with a forum to
establish general jurisdiction, a plaintiff may impute the minimum contacts of a
California subsidiary to a nonresident parent through theories of alter ego or agency.
(DVI, supra, 104 Cal.App.4th at p. 1093.) To invoke the alter ego doctrine, a plaintiff
must show there is such a unity of interest and ownership between the two entities that
they do not have separate personalities and it would be inequitable to treat the conduct as
attributable to only one of the entities. (Sonora Diamond Corp. v. Superior Court (2000)
83 Cal. App. 4th 523, 538 (Sonora).) To impute contacts under a theory of agency, a
plaintiff must demonstrate that the parent "exercised pervasive and continuous control
over [the subsidiary's] day-to-day operations that went beyond the normal
parent-subsidiary relationship." (BBA Aviation PLC v. Superior Court (2010) 190
Cal. App. 4th 421, 433 (BBA Aviation).)
For example, in BBA Aviation, the plaintiff contended the California subsidiary's
contacts should be imputed to the out-of-state parent when, among other things: the two
corporations had common officers and directors; the parent's executive management
committee participated in workshops with the subsidiary; and the parent's name and logo
appear on the subsidiary's signage uniforms, business cards and documents. (BBA
Aviation, supra, 190 Cal.App.4th at pp. 434-435.) The court determined that the
subsidiary had its own corporate officers, human resources staff, and financial personnel
8
and concluded the presence of interlocking directors and officers was considered a
normal attribute of ownership. (Id. at p. 434.) In addition, the court found branding with
the parent's logo insufficient to establish control. (Id. at p. 435.) The court therefore
refused to impute the subsidiary's forum contacts to its parent corporation under an
agency theory. (Id. at p. 433.)
Similarly, in DVI, the Court of Appeal examined the relationship between a parent
corporation and its subsidiary and concluded that the plaintiffs' allegations of alter ego
and agency were insufficient to establish general jurisdiction over the nonresident parent.
(DVI, supra, 104 Cal.App.4th at p. 1094.) The plaintiffs presented evidence that the two
corporations used consolidated financial statements containing collective terms such as
"we" to refer to the parent and its subsidiaries; the subsidiary advertised in California
under the parent's brand name; and the parent had overlapping directors with the
subsidiary. (Id. at pp. 1095-1097.) The court determined the use of consolidated
financial statements and inclusive language fails to prove the parent and subsidiaries are a
single entity in practice; collective advertising under a common brand does not establish
general jurisdiction; and the mere existence of common directors is insufficient to
establish alter ego, as overlapping corporate officers and directors are normal attributes of
a parent-subsidiary relationship. (Ibid.) On these same facts, the court concluded that the
plaintiffs failed to prove an agency relationship, as they did not establish such a degree of
control over the resident entity so that it could be described as only a means through
which defendant acts or no more than a department of the parent. (Id. at p. 1094.)
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B. Analysis
Here, Strasner has failed to establish that any of the Defendants have substantial,
continuous and systematic contacts with California sufficient to establish general
jurisdiction. Strasner does not contend any defendant has sufficient direct contacts with
California to support general jurisdiction. Nor does she contend she can establish an
alter-ego relationship between Ingram and any of its subsidiaries. Instead, she argues that
general jurisdiction is appropriate over each defendant subsidiary because each is an
agent of Ingram, the California parent company. There does not appear to be any
California case in which an agency theory has been used to impute a California parent
company's forum contacts to an out-of-state subsidiary.1 In addition, such "reverse
agency" theory appears at odds with the underlying principle of imputation through
1 Some plaintiffs in other forums have attempted to rely on a similar "reverse
agency" or "single enterprise" theory to impute a parent's forum contacts to a nonresident
subsidiary, but their arguments have not been addressed on the merits. (See Goodyear,
supra, 564 U.S. at pp. 930-931 [refusing to consider appellants' argument that general
jurisdiction was appropriate due to the interrelatedness between the resident parent and
nonresident subsidiaries because appellants had failed to raise it below or in opposing the
petition for certiorari]; Ranza v. Nike (2015) 793 F.3d 1059, 1071 [refusing to consider
the reverse agency argument because the Ninth Circuit's agency test was characterized by
the Supreme Court in Daimler as too broad to comply with due process].) The agency
test formerly used by the Ninth Circuit differs from that applied by California courts, as it
allowed a finding of agency whenever the work performed by a subsidiary was so
"important" to its parent that the parent would have performed the services itself in the
subsidiary's absence. (Daimler, supra, 134 S. Ct. at p. 759.) The Supreme Court
characterized this inquiry as "stack[ing] the deck" in favor of jurisdiction. (Ibid.) In
contrast, the California test considers whether a parent exercised excessive control over
its subsidiary's forum-based operations beyond that of a normal parent-subsidiary
relationship. (BBA Aviation, supra, 190 Cal.App.4th at p. 433.) The reasoning in
Daimler therefore does not preclude imputing a resident's contacts to a nonresident under
the California version of the agency test.
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agency, which relies on a nonresident entity exerting power over the day-to-day
operations of the resident corporation (Sonora, supra, 83 Cal.App.4th at p. 542), akin to a
nonresident puppeteer pulling the strings of a California puppet. However, even if such
reverse agency theory were viable, Strasner has not established that Ingram's control over
any Defendant is so pervasive and continual to require Ingram's contacts with California
to be imputed to it under an agency theory.
Regarding Brightpoint, Strasner demonstrated that by 2014, it had issued
consolidated revenue reports with Ingram, was no longer publicly traded, was described
in an SEC filing as a "combination" with Ingram and as working "together" with it, used
Ingram branding, discontinued its separate website and engaged in some integration of
accounting and human resources functions, in that some managers at Ingram oversee
Brightpoint managers in human resources or accounting. However, the two corporations
had separate management teams and facilities and Strasner offered no evidence that
Ingram directs Brightpoint's day-to-day operations. On this evidence, Strasner fails to
establish any agency relationship beyond that generally associated with ownership.
Normal characteristics of ownership, such as some degree of direction and oversight,
interlocking directors and officers, a close financial connection, consolidated reporting,
and shared professional services are insufficient to establish an agency relationship.
(Sonora, supra, 83 Cal.App.4th at pp. 540-541.) Likewise, evidence of co-branding or
the broad use of terms linking the corporations together in SEC filings, or other materials,
do not establish control rising to the level of an agency relationship. (BBA Aviation,
supra, 190 Cal.App.4th at pp. 434-435; DVI, supra, 104 Cal.App.4th at p. 1096; Sonora,
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at pp. 549-550.)
The same is true for BPNA, as Strasner has failed to establish any connection
between it and Ingram other than their general corporate relationship and their use of co-
branding, which are not sufficient to establish agency. (BBA Aviation, supra, 190
Cal.App.4th at p. 432; DVI, supra, 104 Cal.App.4th at p. 1096.) Regarding TAL,
Strasner asserts TAL's president signed a contract with T-Mobile on behalf of
Touchstone and is described as the president of "North America Mobility at Ingram
Micro" on his LinkedIn page, but even if there were evidence TAL and Ingram had an
overlapping officer, the mere existence of overlapping officers and directors is
insufficient to support a finding of agency. (BBA Aviation, supra, 190 Cal.App.4th at
p. 434.) Finally, as to Touchstone, Strasner's agency argument is based primarily on its
relationship with its direct parent Brightpoint, another nonresident corporation. Because
Strasner has failed to demonstrate a relationship between Brightpoint and Ingram
indicative of agency, she likewise cannot establish that Touchstone is an agent of Ingram
by imputing Brightpoint's contacts with Ingram to Touchstone. In addition, Strasner
references Touchstone's payments to vendors in California, but provides no evidence that
those payments are made on Ingram's behalf or that there is any other connection
between the corporations with regard to such payments that would support an agency
relationship.
Based on the foregoing, we conclude Strasner has failed to satisfy her burden to
establish that any of the Defendants have sufficient contacts with California to be subject
to its general jurisdiction.
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III. Specific Jurisdiction
A. Legal Principles
The specific jurisdiction analysis focuses on the " ' "relationship among the
defendant, the forum, and the litigation." ' " (Bristol-Myers Squibb Company v. Superior
Court (2016) 1 Cal.5th 783, 799 (Bristol-Myers).) To establish specific jurisdiction, a
plaintiff must demonstrate that: (1) the nonresident defendant has purposefully directed
its activities at the forum; (2) the litigation is related to, or arises out of, these forum-
related activities; and (3) exercise of jurisdiction is reasonable and complies with
" ' " 'traditional notions of fair play and substantial justice.' " ' " (Ibid.) Once a court has
concluded that the first two prongs of the test have been satisfied, the burden shifts to the
defendant to show the exercise of jurisdiction would be unreasonable under the third
prong. (Id. at p. 800; HealthMarkets, Inc. v. Superior Court (2009) 171 Cal. App. 4th
1160, 1168 (HealthMarkets).) If the plaintiff is unable to demonstrate sufficient
minimum contacts with the forum to justify jurisdiction, a court is not required to engage
in the process of weighing the defendant's inconvenience of litigating in the forum
against the plaintiff's interests in suing locally and California's interest in assuming
jurisdiction. (Sipple v. Des Moines Register & Tribune Co. (1978) 82 Cal. App. 3d 143,
153 (Sipple).) The relevant time period for measuring the nature and quality of a
nonresident defendant's contacts with the forum for purposes of specific jurisdiction is at
the time the plaintiff's cause of action arose. (Cadle Co. II, Inc. v. Fiscus (2008) 163
Cal. App. 4th 1232, 1239 (Cadle Co. II).)
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In Bristol-Myers, the most recent California Supreme Court decision to address
specific jurisdiction, the court concluded that California had specific jurisdiction over an
out-of-state pharmaceutical manufacturer, Bristol-Myers Squibb (BMS), for the claims of
both resident and nonresident plaintiffs who were injured by the misleading marketing
and negligent design and manufacture of Plavix, a prescription drug. (Bristol-Myers,
supra, 1 Cal.5th at p. 813.) The court first determined BMS' conduct satisfied the
purposeful availment prong of the specific jurisdiction analysis, because it had marketed
and sold Plavix in California, employed sales representatives in California, contracted
with a California-based distributor, operated research and laboratory facilities in
California and had a lobbying office in Sacramento. (Id. at pp. 801-802.) The court
further concluded the California plaintiffs' claims concerning misleading marketing of
Plavix and injuries resulting from ingesting the drug arose out of BMS' California
contacts, satisfying the second prong of the specific jurisdiction test (relatedness of the
litigation to the defendant's forum contacts). (Id. at pp. 803-804.)
In addition, the court held California had jurisdiction over claims of non-
California plaintiffs because their claims were substantially connected to BMS' California
conduct. (Bristol-Myers, supra, 1 Cal.5th at pp. 807-808.) The court explained a claim
need not arise directly from a defendant's forum contacts; rather, the relatedness analysis
is a sliding scale with the intensity of forum contacts inversely related to the extent of the
connection. (Id. at p. 800.) The court concluded under the sliding scale analysis BMS'
extensive California contacts were sufficiently related to the nonresidents' claims to
satisfy the relatedness requirement under the following facts: (1) the nonresident
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plaintiffs' claims arose out of the same nationwide sales and marketing campaign used in
California; (2) BMS had substantial sales of Plavix in California; and (3) some of the
nonresidents' claims were based on negligent research and design, BMS conducted drug
research and development activities in California (although not for Plavix) and had
therefore availed itself of California's laws governing research activities. (Id. at pp. 801-
802, 805-806.)
In Bristol-Myers, BMS' forum contacts unquestionably satisfied the purposeful
availment requirement (which BMS did not contest), as it had extensive business contacts
in California, including substantial pharmaceutical sales, research facilities and hundreds
of employees. (Bristol-Myers, supra, 1 Cal.5th at pp. 801-802.) Generally, the
purposeful availment requirement is " 'satisfied when the defendant purposefully and
voluntarily directs his activities toward the forum so that he should expect, by virtue of
the benefit he receives, to be subject to the court's jurisdiction based on' his contacts with
the forum." (Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 269 (Pavlovich).)
However, in libel, defamation and some other intentional tort cases, courts have applied
an "effects test" to assess the purposeful availment requirement.2 (Id. at pp. 269-270.)
In Calder v. Jones (1984) 465 U.S. 783 (Calder), the United States Supreme Court
established the effects test in connection with a California libel lawsuit. A California
actress sued a reporter and editor employed by National Enquirer at its Florida
2 The "effects test" is also described as the "purposeful direction" test by federal
courts. (Gilmore Bank v. AsiaTrust New Zealand Limited (2014) 223 Cal. App. 4th 1558,
1569 (Gilmore).)
15
headquarters, based on an article published in its newspaper, which had a California
circulation of approximately 600,000. The court concluded California's jurisdiction over
the defendants complied with due process because although defendants' activities focused
on the plaintiff, defendants also had significant contacts with the forum, as they had
communicated with California sources to investigate the article, the article was about
plaintiff's activities in California, and the article was widely circulated in the state,
causing injury to plaintiff's reputation there. (Id. at pp. 788-789.) The court
characterized jurisdiction over defendants as based on the "effects" of their Florida
conduct in the state, observing their intentional actions were "expressly aimed at
California" because they wrote the article knowing it would harm the plaintiff and the
greatest impact of the harm would occur in the plaintiff's home state, in which National
Enquirer had the largest circulation. (Id. at pp. 789-790.)
The effects test was also applied in Keeton v. Hustler Magazine, Inc. (1984) 465
U.S. 770, 780-781 (Keeton). In Keeton, a New York resident brought a libel action
against a California-based publication in New Hampshire state court (the only state court
in which the statute of limitations had not run).3 (Id. at p. 773.) The court concluded that
the California defendant, who sold 10,000 to 15,000 copies of its publication in New
Hampshire monthly, could reasonably be expected to be subject to New Hampshire's
jurisdiction in light of its continuous and deliberate exploitation of the New Hampshire
3 The Supreme Court noted that the respective duration of the statutes of limitations
in nonforum jurisdictions has nothing to do with the determination of contacts among
defendant, the forum state and the litigation. (Keeton, supra, 465 U.S. at p. 779.)
16
market. (Id. at pp. 772, 781; cf. Evangelize China Fellowship, Inc. v. Evangelize China
Fellowship Hong Kong (1983) 146 Cal. App. 3d 440, 449 [no specific jurisdiction when
the defendant publisher's only connection to California was its mailing of 600 copies per
month of a magazine containing an allegedly libelous editorial to California readers and
sending receipts to its California financial contributors and California was not the topic of
the editorial].)
Under California law, to establish specific jurisdiction through the effects test a
plaintiff must show the defendant committed an intentional act, expressly aimed at or
targeting the forum state, with the knowledge that his act would cause harm in the state.
(Pavlovich, supra, 29 Cal.4th at pp. 271-272; see Gilmore, supra, 223 Cal.App.4th at
p. 1570 ["the effects test requires express aiming at the forum (not necessarily at the
plaintiff)"].) In Pavlovich, the defendant, a Texas resident, had posted source code on a
website that could be used to decrypt the copyright function of DVD's while he resided in
Indiana. (Pavlovich, at p. 266.) The plaintiff, a California organization responsible for
licensing the encryption technology, filed a complaint alleging the defendant's
misappropriation of trade secrets and contending defendant's posting harmed a wide array
of California industries. (Id. at p. 267.) Defendant asserted that he did not know plaintiff
was the licensor of the technology or that it was located in California. (Id. at p. 275.)
The court analogized the defendant's posting on a passive website as akin to placing a
product in the stream of commerce, and found that such posting was insufficient to
establish purposeful availment when the defendant did not know his conduct would cause
harm to the plaintiff in California. (Id. at pp. 274-275.) The court further concluded that
17
even if the defendant should have known that his conduct would impact California
corporations, the mere foreseeability of harm in California did not fulfill the effects test.
(Id. at pp. 276-278.)
Since Pavlovich, a number of courts have conducted jurisdictional analyses in the
context of defendants' acts conducted over the internet. For example, in Burdick v.
Superior Court (2015) 233 Cal. App. 4th 8 (Burdick), the Court of Appeal considered
whether a nonresident defendant's posting of defamatory statements about a California
resident on the defendant's personal Facebook page constituted sufficient minimum
contacts to subject the defendant to jurisdiction in California and concluded it did not.
(Id. at p. 25.) The Burdick defendant made the post in Illinois, the post did not have a
California focus and the plaintiff provided no evidence that the defendant had a
significant number of Facebook friends who lived in California or that the page contained
advertisements targeting Californians. (Ibid.) In addition, the court noted that the
defendant's Facebook page was characterized as publicly available, which made it less
likely that the defendant had intentionally targeted California. (Ibid.) Under these
circumstances, the court concluded California lacked personal jurisdiction over the
defendant because there was no evidence that the defendant expressly aimed or
intentionally targeted his conduct at California, rather than at the plaintiff. (Id. at pp. 25-
26.)
More recently, the Court of Appeal held that California did not have personal
jurisdiction over a nonresident defendant who instituted a campaign to harass and defame
a California corporation through threats made on Twitter and in comments posted online.
18
(ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 219.) The court noted that the
threats were published to anyone who chose to access them, and were not directed solely
to the plaintiff. Moreover, although the plaintiff alleged that the defendant knew the
plaintiff's CEO lived in San José and published his California address online, there was
no admissible evidence supporting those assertions. (Id. at p. 218.) Under those facts,
the court determined the plaintiff had failed to demonstrate that the defendant aimed his
statements at a California audience, that the social media platforms defendant used were
targeted at California, or that a significant number of California residents saw the posts
and concluded there was not competent evidence of minimum contacts with California
sufficient to allow it to exercise jurisdiction over the defendant. (Id. at p. 219; see also
McGibney v. Retzlaff (N.D.Cal., June 18, 2015, No. 14-CV-01059-BLF) 2015 WL
3807671, at *5 [a plaintiff's conclusory declaration stating the nonresident defendant
knew recipients of his e-mail messages were California residents was insufficient to
establish targeted forum contacts when such declaration lacked foundation as to the
defendant's intent and knowledge]; cf. Mavrix Photo, Inc. v. Brand Technologies, Inc.
(9th Cir. 2011) 647 F.3d 1218, 1229-1230 [a nonresident defendant's conduct was
directed at California when the defendant posted copyrighted pictures of California
celebrities on its celebrity gossip website, which also contained third-party advertising for
jobs, hotels and vacations in California, establishing the defendant's exploitation of the
California market for its own commercial gain].)
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B. Analysis
In her opening brief, Strasner contends Defendants are subject to specific personal
jurisdiction in California because a Touchstone employee in Texas intentionally uploaded
her photograph on Facebook. Strasner does not identify, either below or on appeal, the
nature of any contacts by BPNA, TAL or Bridgepoint which could form the basis for
establishing their purposeful availment of the benefits of the California forum, nor does
she provide any reasoned argument or citation to authority to support a finding of
purposeful availment with respect to such Defendants. "When an appellant fails to raise a
point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived." (Badie v. Bank of America (1998) 67
Cal. App. 4th 779, 784-785.)
With respect to Touchstone, Strasner contends it is undisputed that her photograph
was not uploaded accidently or that the majority of her Facebook friends reside in
California. She further contends anyone posting her "private information to her
Facebook page would easily be made aware that most of her family and friends were in
California." Strasner analogizes the posting of the photograph to her Facebook account,
causing it to be sent to her Facebook friends via Facebook's "newsfeed" feature, to the
process of mailing copies of the private photograph to each of her Facebook contacts, and
claims that the majority of such mail would be sent to California. She further argues the
majority of her injury occurred in California, where persons who were most important to
her were located. Strasner characterizes the employee's action as targeting not only her,
but also "her many friends and family in California."
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As evidentiary support for her contentions, Strasner relies on her declaration,
stating the vast majority of her Facebook friends were from California and such fact
would be "clearly realize[d]" by anyone who accessed her account. She further relies on
the following facts: the uploaded photo indicated it was "posted from mobile"; the
number associated with her returned mobile telephone had a Los Angeles area code; and
the telephone also contained private financial information, passwords and medical
information. Strasner contends such evidence "gives rise to the reasonable [inference]
that Touchstone's employee was able to determine that Strasner had substantial California
connections." However, this evidence is insufficient to establish that a Touchstone
employee expressly aimed his or her conduct at, or targeted, California with the
knowledge that such act would cause harm in the state. (Pavlovich, supra, 29 Cal.4th at
pp. 271-272.)
Strasner provides no factual evidence to support her contention that the act of
uploading her photograph to her Facebook account resulted in a targeted transmission of
the photograph to her Facebook friends.4 (Automobile Antitrust, supra, 135 Cal.App.4th
at p. 110.) Instead, she relies on descriptions of the Facebook "newsfeed" process
contained in her briefing, which is not evidence. In addition, Strasner provides no
foundation for the conclusory assertion in her declaration that anyone accessing her
4 In addition, Strasner described the posting of her picture as "publicly posting" her
private photograph and making it available "readily, to anyone with access to her
Facebook newsfeed, including but not limited to, her friends, clients . . . and the public."
Her characterization of her Facebook page as publicly available makes it less likely that
the employee defendant intentionally targeted California. (See Burdick, supra, 233
Cal.App.4th at p. 25.)
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Facebook page would "clearly realize" the majority of her Facebook friends were from
California. She also fails to establish how her unspecified financial and medical
information and passwords would have informed anyone viewing them that the bulk of
her Facebook contacts reside in California. Presumably, as Strasner was living in New
York when the posting occurred, to the extent her data showed a current address, it would
not be in California. Furthermore, Strasner offers no evidence that the photograph itself
provided any indication of her ties to California. Finally, even if a Texas employee may
have seen the Los Angeles area code associated with Strasner's discarded mobile
telephone, such possibility does not compel an inference that the employee knew the area
code was associated with California or that the employee therefore must have known that
a substantial number of Strasner's Facebook friends lived in California.
Strasner asserts "it must be said that [Defendants] purposefully directed their
activities at California," because they were unable to cite a single case in which any court
granted a motion to quash service on a defendant accused of posting information on a
plaintiff's Facebook page or personal website, but Strasner likewise was unable to find
any case in which a court denied a motion to quash under similar circumstances. Nor has
Strasner identified any authority in which a court found specific jurisdiction without
sufficient evidentiary support establishing that the defendant's conduct was targeted at the
forum state with knowledge that the act would cause harm in the state. Strasner likens
her case to Calder and Keeton, but in both of those cases it was undisputed that the
defendants knew a substantial number of the publications at issue were sold in the forum,
thus the forum was expressly targeted. (Calder, supra, 465 U.S. at pp. 788-789; Keeton,
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supra, 465 U.S. at p. 772.) Here, Strasner did not present sufficient evidence that the
Facebook posting specifically targeted California. Strasner has therefore failed to
establish that Touchstone purposefully availed itself of the California forum through the
posting of Strasner's photograph.
At oral argument, Strasner argued for the first time that Touchstone had other
business contacts in California through which it could demonstrate specific jurisdiction
under Bristol-Myers. As noted above, Touchstone made payments to vendors in
California and had a single California customer (who was not T-Mobile). These types of
deliberate business contacts would appear to satisfy the purposeful availment prong of the
specific jurisdiction test. (Pavlovich, supra, 29 Cal.4th at p. 269.) However, there is no
evidence in the record that such contacts existed at the time Strasner's photograph was
posted, which is the relevant time for evaluating Touchstone's contacts with California in
order to establish specific jurisdiction. (See Cadle Co. II, supra, 163 Cal.App.4th at
p. 1239.)
Moreover, even if Touchstone engaged in these contacts at the relevant time and
thereby purposefully availed itself of the California forum, Strasner has provided no
evidence to satisfy the second prong of the specific jurisdiction test: that there was a
substantial connection between her alleged injury and Touchstone's California contacts.
(Bristol-Myers, supra, 1 Cal.5th at p. 805.) The record does not indicate what the
California vendors were paid to do or how the vendors' California activities were
connected to Touchstone's Texas refurbishment facility, where the posting of Strasner's
photograph allegedly occurred. In addition, although Touchstone admittedly provided
23
refurbishment services for one California customer at its Texas facility (as it did for T-
Mobile), there is nothing in the record to suggest that the alleged mishandling of
Strasner's data was part of any common pattern or practice or impacted any of the mobile
telephones handled for the California customer. Therefore, unlike the circumstances in
Bristol-Myers, in which BMS conducted a nationwide pattern of marketing, promotion
and distribution activities which injured both California and nonresident plaintiffs in their
home states, there is no demonstrated connection between Touchstone's vendor activity
or sales in California and Strasner's claims. (Id. at p. 804.)
Furthermore, Touchstone's California contacts (payments to vendors and sale of
services to a California customer), do not appear as extensive as those in Bristol-Myers,
as BMS had research facilities, lobbyists and employees in California in addition to its
California distributor, salesforce and substantial sales of the product at issue. (Bristol-
Myers, supra, 1 Cal.5th at pp. 801-802.) Accordingly, under the sliding scale analysis,
Touchstone's California contacts would need to be more closely connected to Strasner's
litigation than BMS' contacts were to the Bristol-Myers litigation and Strasner has not
identified facts to show any connection between Touchstone's business contacts in
California and her alleged injury. (Id. at p. 800, 806.) Strasner has not established
Touchstone purposefully availed itself of forum benefits through contacts with California
that were substantially related to her alleged injury and therefore has not demonstrated
the minimum contacts required for specific jurisdiction.
Strasner also attempts to rely on various factors of the reasonableness analysis and
other "plus factors" described in a federal district court case to overcome her failure to
24
establish minimum contacts. (See Vons, supra, 14 Cal.4th at pp. 447-448; Crane v. Carr
(D.C. Cir. 1987) 814 F.2d 758, 762-763.) However, Strasner presents no authority
requiring the court to consider such factors when she has failed to establish the threshold
minimum-contact requirement. (See Sipple, supra, 82 Cal.App.3d at p. 153.)
Furthermore, Strasner fails to establish how any of the "factors" she presents can
somehow compensate for the lack of minimum contacts.
We conclude Strasner has failed to establish any Defendant's minimum contacts
with California sufficient to allow for the exercise of specific jurisdiction.
DISPOSITION
The trial court's order granting Defendants' motion to quash service of process for
lack of jurisdiction is affirmed. Defendants are entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
O'ROURKE, J.
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