Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC

Filed 5/21/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
BOMBARDIER RECREATIONAL PRODUCTS, C065603
INC.,
(Super. Ct. No. 165714)
Cross-complainant and Appellant,
v.
DOW CHEMICAL CANADA ULC,
Cross-defendant and Respondent.
APPEAL from a judgment of the Superior Court of Shasta County, Monica
Marlowe, Judge. Affirmed.
Haight Brown & Bonesteel, William O. Martin, Jr., Jules S. Zeman, and R. Bryan
Martin for Cross-complainant and Appellant.
King & Spalding, Gennaro A. Felice III, and Paul R. Johnson for Cross-defendant
and Respondent.
This appeal challenges the trial court’s quashing service of summons for lack of
personal jurisdiction. We review the issue as a matter of law (Hall v. LaRonde (1997) 56
Cal.App.4th 1342, 1346), and we affirm the trial court’s determination.
1
FACTS
The underlying plaintiff sued appellant Bombardier Recreational Products, Inc.
(Bombardier), for personal injuries. He claimed that in 2007, while trying to start a Sea-
Doo personal watercraft manufactured by Bombardier, the watercraft caught fire, causing
him serious injuries. He alleged Bombardier was negligent for failing to inform him of a
recall for the watercraft’s allegedly defective fuel tank.
Bombardier filed a cross-complaint against respondent Dow Chemical Canada
ULC (Dow Canada). Dow Canada is a successor to Union Carbide Canada, Inc. (Union
Carbide Canada), whose Wedco Moulded Products division (Wedco), for a time,
manufactured fuel tanks Bombardier installed in its personal watercraft.
Appearing specially, Dow Canada filed a motion to quash service of summons for
lack of personal jurisdiction. It contended it and its predecessors lacked sufficient
contacts with California to be subject to suit here. Prior to 1998, Wedco manufactured
fuel tanks and fuel tank filler necks used by Bombardier in its personal watercraft. The
fuel tanks were manufactured exclusively in Canada. Wedco sold the fuel tanks to
Bombardier exclusively in Canada pursuant to purchase orders made in Canada.
Bombardier manufactured its personal watercraft in Canada. Union Carbide Canada sold
Wedco to an unrelated third party in 1998.
Union Carbide Canada, including Wedco, never had a registered agent in
California, never qualified to do business in California, never manufactured any products
in California, never had any employees, offices, or facilities in California, and never
advertised or sold any personal watercraft fuel tanks or fuel tank filler necks in
California.
In 2001, Union Carbide Canada merged with Dow Chemical Canada, Inc., and the
company was later renamed Dow Chemical Canada ULC.
Dow Canada is a Canadian corporation with its principal place of business in
Calgary, Alberta, Canada. It has never had an agent for service of process in California,
2
never qualified to do business in California, never manufactured any products in
California, never had any employees, officers or other facilities in California, and never
advertised or sold products in California or to customers in California.
In its opposition to the motion to quash service, Bombardier did not contest Dow
Canada’s factual assertions. Rather, it argued Dow Canada had sufficient contacts with
California because Union Carbide Canada had known Bombardier would incorporate its
fuel tanks and fuel tank filler necks in personal watercraft it intended to sell in the United
States, including California. Bombardier submitted a declaration from one of its
component part buyers, Pierre Biron, stating he had informed Union Carbide Canada its
fuel tanks and fuel tank filler necks would be used in watercraft sold across the United
States, including California. Bombardier also submitted a declaration from its director of
intellectual property, Jean Daunais, stating Union Carbide Canada, as part of its contract
to supply Bombardier with fuel tanks, had agreed to produce tanks that complied with
regulatory standards promulgated by the United States Coast Guard.
Dow Canada objected to Bombardier’s evidence in part because the declarations
were signed under penalty of perjury under the laws of the United States of America, not
the laws of the State of California as required by Code of Civil Procedure section 2015.5.
The trial court granted the motion to quash, and it sustained the objections against
Bombardier’s evidence. It determined California lacked personal jurisdiction because
Dow Canada lacked minimum contacts with the state. Dow Canada had not purposefully
engaged in activities in the state or availed itself of the benefits of conducting business
here. The court sustained Dow Canada’s objections to Bombardier’s evidence, but it
stated that even if Dow Canada had known Bombardier would sell the watercraft in the
United States or had agreed to design the fuel tanks in compliance with United States
regulations, Dow Canada’s contacts with California would be attenuated at best and
insufficient to establish personal jurisdiction.
3
DISCUSSION
Bombardier contends the trial court erred. It claims Dow Canada’s knowledge
that its products would eventually enter the stream of commerce in California was
sufficient to establish jurisdiction. It also claims the trial court erred in sustaining the
objections against Biron’s and Daunais’s declarations.
In Dow Chemical Canada ULC v. Superior Court (2011) 202 Cal.App.4th 170(Fandino), our colleagues in the Second Appellate District faced the same issue we face:
whether Dow Canada was subject to California jurisdiction because its predecessors were
aware that their fuel tanks and fuel tank filler necks, installed in Bombardier watercraft
manufactured in Canada, would be sold in California. The Court of Appeal and the
California Supreme Court initially had denied Dow Canada any relief, but the United
States Supreme Court vacated the judgment and remanded the matter to the Court of
Appeal for further consideration in light of the high court’s most recent ruling on
personal jurisdiction, J. McIntyre Machinery, Ltd. v. Nicastro (2011) 564 U.S. __ [180
L.Ed.2d 765 (J. McIntyre). (Fandino, supra, 202 Cal.App.4th at p. 174.) Relying on J.
McIntyre, the Court of Appeal concluded Dow Canada was “not subject to personal
jurisdiction in California because it did not purposefully avail itself of the privilege of
conducting activities within the forum state.” (Fandino, supra, at p. 173.)
We reach the same result our colleagues did in Fandino.
“ ‘California courts may exercise personal jurisdiction on any basis consistent with
the Constitution of California and the United States. (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.” ’ ”
([Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons)],
4
quoting Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316 [90 L.Ed. 95, 102]
(Internat. Shoe).)’ (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich).)
“ ‘The concept of minimum contacts . . . requires states to observe certain
territorial limits on their sovereignty. It “ensure[s] that the States, through their courts,
do not reach out beyond the limits imposed on them by their status as coequal sovereigns
in a federal system.” ’ (Vons, supra, 14 Cal.4th at p. 445, quoting World-Wide
Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 292 [62 L.Ed.2d 490, 498] (World-
Wide Volkswagen).) To do so, the minimum contacts test asks ‘whether the “quality and
nature” of the defendant’s activity is such that it is “reasonable” and “fair” to require him
to conduct his defense in that State.’ (Kulko v. California Superior Court (1978) 436
U.S. 84, 92 [56 L.Ed.2d 132, 141], quoting Internat. Shoe, supra, 326 U.S. at pp. 316–
317.) The 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.’ (Kulko, at p. 92.)” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th
1054, 1061 (Snowney).)
Under the minimum contacts test, “[p]ersonal jurisdiction may be either general or
specific.” (Vons, supra, 14 Cal.4th at p. 445.) Because Bombardier does not claim
general jurisdiction, we consider only whether specific jurisdiction exists here.
“ ‘When determining whether specific jurisdiction exists, courts consider the
“ ‘relationship among the defendant, the forum, and the litigation.’ ” (Helicopteros
Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414 [80 L.Ed.2d 404, 411],
quoting Shaffer v. Heitner (1977) 433 U.S. 186, 204 [53 L.Ed.2d 683, 698.].) A
court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the
defendant has purposefully availed himself or herself of forum benefits” (Vons, supra,14 Cal.4th at p. 446); (2) “the ‘controversy is related to or “arises out of” [the]
defendant’s contacts with the forum’ ” (ibid., quoting Helicopteros, supra, 466 U.S. at
p. 414); and (3) “ ‘the assertion of personal jurisdiction would comport with “fair play
5
and substantial justice” ’ ” (Vons, supra, 14 Cal.4th at p. 447, quoting Burger King Corp.
v. Rudzewicz (1985) 471 U.S. 462, [476] [85 L.Ed.2d 528, 535] [(Burger King)].)’
(Pavlovich, supra, 29 Cal.4th at p. 269.)” (Snowney, supra, 35 Cal.4th at p. 1062.)
The United States Supreme Court has wrestled with the scope of the “purposeful
availment” requirement. Plurality and concurring opinions in Asahi Metal Industry Co. v.
Superior Court (1987) 480 U.S. 102 [94 L.Ed.2d 92] (Asahi) offered competing views on
whether the foreign defendant created minimum contacts with the forum state simply by
foreseeing that its products could reach the forum state when they entered into the stream
of commerce. More recently, in J. McIntyre, plurality and concurring opinions again
could not agree on the extent to which the foreign defendant’s foreseeability could
establish minimum contacts.
Bombardier and Dow Canada disagree on the effect of J. McIntyre. We conclude
both the plurality and the concurring opinions in J. McIntyre agree that mere
foreseeability, at least where products are not sold in a state as part of the regular and
anticipated flow of commerce into that state, is not enough to establish minimum contacts
with the forum state. Beyond that, the opinions do not significantly add to the state of
personal jurisdiction jurisprudence, and we thus rely on existing precedent to define and
apply the purposeful availment prong of the minimum contacts test.
In Asahi, a California plaintiff sued in state court the Taiwanese manufacturer of a
motorcycle tire tube in a products liability action. The Taiwanese manufacturer in turn
filed a cross-complaint for indemnity against Asahi, the Japanese manufacturer of the
tube’s valve assembly. Asahi moved to quash summons on the basis of lack of
jurisdiction. (Asahi, supra, 480 U.S. at pp. 105-106.) The high court concluded Asahi
lacked minimum contacts with California. (Id. at p. 108.)
Writing for the four-member plurality, Justice O’Connor rejected the notion that
“mere foreseeability or awareness was a constitutionally sufficient basis for personal
jurisdiction if the defendant’s product made its way into the forum State while still in the
6
stream of commerce. [Citation.]” (Asahi, supra, 480 U.S. at p. 111 (plur. opn. of
O’Connor, J.).) She and three other justices concluded “[t]he ‘substantial connection’
[citations] between the defendant and the forum State necessary for a finding of
minimum contacts must come about by an action of the defendant purposefully directed
toward the forum State. [Citations.] The placement of a product into the stream of
commerce, without more, is not an act of the defendant purposefully directed toward the
forum State. Additional conduct of the defendant may indicate an intent or purpose to
serve the market in the forum State, for example, designing the project for the market in
the forum State, advertising in the forum State, establishing channels for providing
regular advice to customers in the forum State, or marketing the product through a
distributor who has agreed to serve as the sales agent in the forum State.” (Id., at p. 112
(plur. opn. of O’Connor, J.), italics omitted.)
According to Justice O’Connor, even assuming Asahi knew some of the valves it
sold to the Taiwanese company would be incorporated into tire tubes sold in California,
the Taiwanese company had “not demonstrated any action by Asahi to purposefully avail
itself of the California market. Asahi does not do business in California. It has no office,
agents, employees, or property in California. It does not advertise or otherwise solicit
business in California. It did not create, control or employ the distribution system that
brought its valves to California. [Citation.] There is no evidence that Asahi designed its
product in anticipation of sales in California. [Citation.] On the basis of these facts, the
exertion of personal jurisdiction over Asahi by the Superior Court of California exceeds
the limits of due process.” (Asahi, supra, 480 U.S. at pp. 112-113 (plur. opn. of
O’Connor, J.).)
Justice Brennan, joined by three justices in his concurrence, rejected Justice
O’Connor’s view of the stream of commerce theory. In his opinion, “[t]he stream of
commerce refers not to unpredictable currents or eddies, but to the regular and anticipated
flow of products from manufacture to distribution to retail sale. As long as a participant
7
in this process is aware that the final product is being marketed in the forum State, the
possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a
burden for which there is no corresponding benefit. A defendant who has placed goods
in the stream of commerce benefits economically from the retail sale of the final product
in the forum State, and indirectly benefits from the State’s laws that regulate and
facilitate commercial activity. These benefits accrue regardless of whether that
participant directly conducts business in the forum State, or engages in additional conduct
directed toward that State.”1 (Asahi, supra, 480 U.S. at p. 117 (conc. opn. of Brennan,
J.).)
The Supreme Court encountered the issue again in J. McIntyre. In that case, the
plaintiff was injured using a metal-shearing machine that had been manufactured by J.
McIntyre in England, and he sued in New Jersey state court. J. McIntyre was
incorporated and operated in England. It sold its machines to an independent United
States distributor who agreed to sell the machines in the United States. However, J.
McIntyre did not sell its machines to United States buyers, nor did it market in or ship
goods to New Jersey. J McIntyre officials attended annual conventions in the United
States, but never in New Jersey. No more than four machines it manufactured ended up
in New Jersey. However, J. McIntyre held both United States and European patents on
its technology, and the distributor structured its advertising and sales efforts in
accordance with J. McIntyre’s direction and guidance. (J. McIntyre, supra, 546 U.S. at p.
___ [180 L.Ed.2d at pp. 772-773].)
1 Justice Brennan nonetheless concurred in the plurality’s judgment, concluding the
exercise of personal jurisdiction over Asahi “would not comport with ‘fair play and
substantial justice.’ [Citation.]” (Asahi, supra, 480 U.S. at p. 116 (conc. opn. of
Brennan, J.).)
8
The New Jersey Supreme Court held New Jersey could exercise jurisdiction. It
ruled the state could “exercise jurisdiction over a foreign manufacturer of a product so
long as the manufacturer ‘knows or reasonably should know that its products are
distributed through a nationwide distribution system that might lead to those products
being sold in any of the fifty states.’ [Citation.]” (J. McIntyre, supra, 546 U.S. at p. ___
[180 L.Ed.2d at p. 772].)
The United States Supreme Court reversed, concluding J. McIntyre lacked
minimum contacts with New Jersey. Writing for a four-member plurality, Justice
Kennedy sided with Justice O’Connor in requiring the minimum contacts with the forum
state to come about by the defendant’s actions purposefully directed toward the forum
state: “This Court’s precedents make clear that it is the defendant’s actions, not his
expectations, that empower a State’s courts to subject him to judgment.” (J. McIntyre,
supra, 546 U.S. at p. ___ [180 L.Ed.2d at p. 776] (plur. opn. of Kennedy, J.).) “[T]he
authority to subject a defendant to judgment depends on purposeful availment, consistent
with Justice O’Connor’s opinion in Asahi . . . .” (J. McIntyre, supra, at p. 777 (plur. opn.
of Kennedy, J.).)
Justice Breyer, writing for himself and Justice Alito, concurred in the result. He
did so, however, based only on existing precedent. None of those precedents, he stated,
found that a single isolated sale to a customer who takes an accident-causing product to a
different state was sufficient contact to assert jurisdiction. That scenario would not pass
muster under either Justice O’Connor’s or Justice Brennan’s formulations announced in
their Asahi opinions. The facts showed “no ‘regular . . . flow’ or ‘regular course’ of sales
in New Jersey [the Brennan, J., approach]; and there is no ‘something more,’ such as
special state-related design, advertising, advice, marketing, or anything else [the
O’Connor, J., approach].” (J. McIntyre, supra, 546 U.S. at p. ___ [180 L.Ed.2d at p. 779]
(conc. opn. of Breyer, J.).)
9
Because the case’s factual record left open many questions, Justice Breyer
believed the case was “an unsuitable vehicle for making broad pronouncements that
refashion basic jurisdictional rules.” (J. McIntyre, supra, 546 U.S. at p. ___ [180 L.Ed.2d
at p. 780] (conc. opn. of Breyer, J.).) He wrote he was adhering strictly to the court’s
precedents and the facts of the case: “I would not go further.” (Id. at pp. 780, 782.)
Nevertheless, Justice Breyer went on to explain why he disagreed with the
approaches taken by both the plurality and by the New Jersey Supreme Court. He
disagreed with the plurality opinion because he felt it was an attempt to establish strict
rules limiting jurisdiction without taking account of recent changes in globalized and
electronic commerce, issues this case did not present. (J. McIntyre, supra, 546 U.S. at p.
___ [180 L.Ed.2d at p. 780] (conc. opn. of Breyer, J.).)
However, he also disagreed with the approach adopted by the New Jersey
Supreme Court that a manufacturer is subject to jurisdiction for a products-liability action
because it should have foreseen its products might be sold anywhere in the United States.
A test based merely on foreseeability would rest jurisdiction “upon no more than the
occurrence of a product-based accident in the forum State,” a notion the high court has
rejected. (J. McIntyre, supra, 546 U.S. at p. ___ [180 L.Ed.2d at p. 781] (conc. opn. of
Breyer, J.); see World-Wide Volkswagen, supra, 444 U.S. at p. 296.)
Such an automatic rule also could not be reconciled with the constitutional
demand for minimum contacts and purposeful availment: “A rule like the New Jersey
Supreme Court’s would permit every State to assert jurisdiction in a products-liability
suit against any domestic manufacturer who sells its products (made anywhere in the
United States) to a national distributor, no matter how large or small the manufacturer, no
matter how distant the forum, and no matter how few the number of items that end up in
the particular forum at issue. What might appear fair in the case of a large manufacturer
which specifically seeks, or expects, an equal-sized distributor to sell its product in a
distant State might seem unfair in the case of a small manufacturer (say, an Appalachian
10
potter) who sells his product (cups and saucers) exclusively to a large distributor, who
resells a single item (a coffee mug) to a buyer from a distant State (Hawaii). I know too
little about the range of these or in-between possibilities to abandon in favor of the more
absolute rule what has previously been this Court's less absolute approach. [¶] Further,
the fact that the defendant is a foreign, rather than a domestic, manufacturer makes the
basic fairness of an absolute rule yet more uncertain. I am again less certain than is the
New Jersey Supreme Court that the nature of international commerce has changed so
significantly as to require a new approach to personal jurisdiction.” (J. McIntyre, supra,
546 U.S. at p. ___ [80 L.Ed.2d at p. 781] (conc. opn. of Breyer, J.).)
In short, Justice Breyer “would not work such a change to the law in the way
either the plurality or the New Jersey Supreme Court suggests without a better
understanding of the relevant contemporary commercial circumstances.” (J. McIntyre,
supra, 546 U.S. at p. ___ [180 L.Ed.2d at p. 782] (conc. opn. of Breyer, J.).)
J. McIntyre thus cleared the air only slightly. Six justices of the United States
Supreme Court now hold mere foreseeability that a product may enter a foreign state is
insufficient to establish minimum contacts with a forum state. An inquiry into a foreign
defendant’s purposeful availment of the forum state’s benefits must find more than
merely entering a product into the stream of commerce with knowledge the product
might enter the forum state. But the high court has not agreed on exactly what more
besides foreseeability must be shown; for example, whether 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 (the Brennan, J., approach); or whether there must be something
more than that, such as special state-related design, advertising, advice, or marketing (the
O’Connor, J., approach).
We thus rely on the California Supreme Court’s most recent description of the
purposeful availment requirement as our guide to resolving this case, understood in light
of J. McIntyre’s holdings that mere foreseeability is insufficient to establish minimum
11
contacts, and that the existence of jurisdiction is determined based on an individualized
assessment of the facts. “ ‘ “The purposeful availment inquiry . . . focuses on the
defendant’s intentionality. [Citation.] This prong is only satisfied when the defendant
purposefully and voluntarily directs [its] activities toward the forum so that [it] should
expect, by virtue of the benefit [it] receives, to be subject to the court’s jurisdiction based
on” [its] contacts with the forum.’ (Pavlovich, supra, 29 Cal.4th at p. 269, quoting U.S.
v. Swiss American Bank, Ltd. (1st Cir. 2001) 274 F.3d 610, 623–624.) Thus, purposeful
availment occurs where a nonresident defendant ‘ “purposefully direct[s]” [its] activities
at residents of the forum’ (Burger King, supra, 471 U.S. at p. 472), ‘ “purposefully
derive[s] benefit” from’ its activities in the forum (id. at p. 473), ‘create[s] a “substantial
connection” with the forum’ (id. at p. 475), ‘ “deliberately” has engaged in significant
activities within’ the forum (id. at pp. 475–476), or ‘has created “continuing obligations”
between [itself] and residents of the forum’ (id. at p. 476). By limiting the scope of a
forum’s jurisdiction in this manner, the ‘ “purposeful availment” requirement ensures that
a defendant will not be haled into a jurisdiction solely as a result of “random,”
“fortuitous,” or “attenuated” contacts . . . .’ (Id. at p. 475.) Instead, the defendant will
only be subject to personal jurisdiction if ‘ “it has clear notice that it is subject to suit
there, and can act to alleviate the risk of burdensome litigation by procuring insurance,
passing the expected costs on to customers, or, if the risks are too great, severing its
connection with the state.” ’ (Pavlovich, at p. 269, quoting World-Wide Volkswagen,
supra, 444 U.S. at p. 297.)” (Snowney, supra, 35 Cal.4th at pp. 1062-1063.)
“Where, as here, ‘ “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.” ’ (Vons, at p. 449.)” (Snowney, supra, 35 Cal.4th at p. 1062.)
Applying this test to the undisputed facts before us, we conclude Dow Canada
lacks the minimum contacts with California that would subject it to California’s
jurisdiction. Dow Canada and its predecessors did not purposefully direct their activities
12
toward the residents of California. They created no substantial connection with
California or continuing obligations between them and California. They did not
deliberately engage in any significant activities within California. Because of their lack
of contacts with California, they could not reasonably expect to be subject to California’s
jurisdiction.
All of Dow Canada’s contacts were with Canada. At all relevant times, Union
Carbide Canada manufactured the fuel tanks exclusively in Canada. It sold the fuel tanks
to Bombardier exclusively in Canada pursuant to purchase orders made in Canada.
Bombardier manufactured its personal watercraft in Canada.
Union Carbide Canada, including Wedco, never had a registered agent in
California, never qualified to do business in California, never manufactured any products
in California, never had any employees, offices, or facilities in California, and never
advertised or sold any personal watercraft fuel tanks or fuel tank filler necks in
California.
Dow Canada is a Canadian corporation with its principal place of business in
Canada. It has never had an agent for service of process in California, never qualified to
do business in California, never manufactured any products in California, never had any
employees, officers or other facilities in California, and never advertised or sold products
in California or to customers in California.
At oral argument, Bombardier asserted this case was governed by People ex rel.
Harris v. Native Wholesale Supply Co. (2011) 196 Cal.App.4th 357 (Harris), but that
case is distinguishable. In Harris, this court determined a tribal-chartered corporation
headquartered on an Indian reservation in New York was subject to California’s personal
jurisdiction. The corporation since 2003 had sold over 300 million cigarettes
manufactured in Canada to an Indian tribe located near Fresno in violation of state law.
(Id. at pp. 362-363.) We concluded the corporation had purposefully availed itself of
California law and benefits by placing goods in the stream of commerce with an
13
expectation they would be sold in California. The corporation had intentionally brought
goods into California. (Id. at pp. 364-365.) The same cannot be said of Dow Canada.
Unlike the tribal corporation in Harris, Dow Canada sold nothing to any person or entity
in California.
Bombardier claims Dow Canada knew when it contracted to provide the fuel tanks
in the 1990’s that they would be used in personal watercraft that would be sold in
California. That may be so, but it would still not provide sufficient minimum contacts
with California. One principle a majority of the Unites States Supreme Court has agreed
upon is that mere knowledge, without something more, is insufficient to establish
jurisdiction in a forum state.
In an attempt to prove that “something more,” Bombardier asks us to make
findings of fact under our discretionary authority provided by Code of Civil Procedure
section 909 or to take judicial notice of evidence. It claims J. McIntyre stands for the
proposition that “an intended regular flow of a significant volume of a foreign
manufacturer’s product into a particular forum state will trigger personal jurisdiction.”
To establish Dow Canada’s fuel tanks were such a flow, Bombardier seeks to admit the
declarations which the trial court refused to admit, as well as evidence derived from
discovery responses and deposition testimony obtained after the trial court quashed
service of summons, to have us establish two factual findings: (1) Dow Canada knew in
the 1990’s the fuel tanks would be installed in personal watercraft to be sold and used in
California; and (2) from 1995-1998, more than 43,000 Bombardier personal watercrafts
containing Dow Canada fuel tanks were sold to California residents.
We deny the requests to admit the declarations and other evidence and to make
factual findings. To admit the declarations, we would have to determine the trial court
abused its discretion when it refused to admit them. The court, however, did not abuse its
discretion. Out-of-state declarations that do not state they were made “under penalty of
perjury under the laws of the State of California” (Code Civ. Proc., § 2015.5) are not
14
deemed sufficiently reliable to be admitted into evidence. (Kulshrestha v. First Union
Commercial Corp. (2004) 33 Cal.4th 601, 610-611.) We will not overturn the trial
court’s decision not to admit the declarations.
We also will not consider the additional evidence Bombardier obtained after the
trial court quashed service. All of the additional evidence Bombardier seeks to introduce
could have been obtained before the trial court ruled on the motion to quash service, as it
concerns actions that occurred in the 1990’s. Bombardier’s decision not to present that
evidence before the trial court is not a sufficient ground to justify our reviewing it here.
Bombardier implies the evidence was not relevant until J. McIntyre was decided,
holding, in Bombardier’s opinion, that an intended regular flow of business into the
forum state is sufficient to establish minimum contacts. As already explained, however,
J. McIntyre did not so hold. Certainly the plurality opinion reached no such conclusion,
and Justice Breyer’s concurring opinion refused to decide the issue, as the facts in that
case did not concern a regular flow of business into the forum state.
We further deny the request to make factual findings. “ ‘Although appellate courts
are authorized to make findings of fact on appeal by Code of Civil Procedure section 909
and rule [8.252(b)] of the California Rules of Court, the authority should be exercised
sparingly. [Citation.] Absent exceptional circumstances, no such findings should be
made. [Citation.]’ [Citations.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405, original
italics.) Even when exceptional circumstances exist, appellate courts still are not to
exercise their authority to make factual findings except where to do so will result in the
litigation’s termination, either by affirming the judgment or reversing and directing
judgment be entered in favor of the appellant. (Tupman v. Haberkern (1929) 208 Cal.
256, 270.)
Here, no exceptional circumstances exist to justify making factual determinations.
As just stated, the trial court did not abuse its discretion in refusing to admit the out-of-
15
state declarations and the additional evidence could have been submitted timely but was
not.
Furthermore, making the requested findings would not end this litigation. Rather,
it would allow the litigation to proceed based on facts never placed before the trial court.
We will not overrule the trial court’s factfinding responsibility and authority and reinstate
litigation where it was a party who failed to bring the facts to the trial court’s attention in
the first instance.
Even if we were to consider the evidence Bombardier seeks to have us admit, it
would not change our decision. The facts of this case are more akin to the facts in Asahi,
where a majority of the court determined jurisdiction did not exist. Justice O’Connor
reached that conclusion because Asahi lacked minimum contacts by doing nothing more
than sell its product to the Taiwanese manufacturer (Asahi, supra, 480 U.S. at pp. 112-
113), and Justice Brennan reached the same conclusion because it would be unfair to hale
a foreign manufacturer of a part sold in a foreign country into a California court to
resolve a claim for indemnity. (Id. at pp. 116-119.) These same principles apply here. It
is unfair to hale Dow Canada into California to resolve a claim for indemnity between it
and another Canadian corporation.
Finally, we note Bombardier is not left without an avenue for relief. Bombardier
has initiated litigation against Dow Canada in Quebec, Canada, that addresses the same
claims it sought to raise in this action, including a claim for indemnification.
DISPOSITION
The order quashing service of process is affirmed. Costs on appeal are awarded to
Dow Canada. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
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HOCH , J.
17