Neutral

As of: April 28, 2025 2:58 PM Z

Watts v. Ashby Lumber Co.

Superior Court of California, County of Alameda
May 8, 2018, Decided
RG17873335

Reporter
2018 Cal. Super. LEXIS 86827 *

Watts Plaintiff/Petitioner v. Ashby Lumber Company (s) The Motion to Quash Service of Summons and
Defendant/Respondent(s) (Abbreviated Title) Complaint filed for Edward Orton Jr. Ceramic
Foundation was set for hearing on 05/03/2018 at [*2]
Core Terms 09:00 AM in Department 17 before the Honorable loana
Petrou. The Tentative Ruling was published and was
cones, pyrometric, burden of proof, personal jurisdiction, contested.
motion to quash
The matter was argued and submitted, and good cause
Counsel: [*1] Maune, Raichle, Hartley, French & appearing therefore,
Mudd, LLC, Attn: Amell, David L., Oakland, CA 94607,
SELMAN * BREITMAN, LLP Attn: Love, Mark A, San IT IS HEREBY ORDERED THAT:
Francisco, CA 94105-000.
Defendant Edward Orton Jr. Ceramic Foundation's
Foley & Mansfield, PLLP Attn: Wah Douglas G, ("Defendant") Motion to Quash is GRANTED. The Court
Oakland, CA 94612, MANNING GROSS + lacks personal jurisdiction over Defendant. The service
MASSENBURG, LLP, Attn: Back, Mary Katherine, Los of summons on Defendant is QUASHED. (Code Civ.
Angeles, CA 90071, JACKSON JENKINS RENSTROM Proc., § 418.10, subd. (a)(1).)
LLP, Attn: Thacker, Todd M., San Francisco, CA 94102,
Pond North LLP, Attn: Moon, Jackie H., Los Angeles, PLAINTIFF'S BURDEN OF PROOF
CA 90071, PERKINS COIE LLP Attn: Hwang, Steven K,
San Francisco, CA 94105, Foley & Mansfield, PLLP Plaintiff Jeffrey A. Watts ("Plaintiff') does not meet his
Attn: McCormick, Jennifer , Oakland, CA 94612, initial burden of proof to establish that the exercise of
Thompson & Knight LLP, Attn: Ongaro, David R, San personal jurisdiction over Defendant is constitutional in
Francisco, CA 94111, Semper Law Group LLP Attn: this instance. (Vons Companies, Inc. v. Seabest Foods,
Tavera, Leonard M.,Glendale, CA 91203, Gordon & Inc. (1996) 14 Cal.4th 434, 449, overruled on other
Rees LLP, Attn: Pietrykowski, Michael J , Oakland, CA grounds by Bristol-Myers Squibb Co. v. Superior Court
94607, Hugo Parker, LLP, Attn: Hugo, Edward R., San (2017) 137 S.Ct. 1773, 1781.) Accordingly, the burden
Francisco, CA 94108, - Third Party - Spanos/ Pretak a never shifts to Defendant to prove that the exercise of
Professional Law Corporation, Attn: Fraenkel Esq, jurisdiction would be unreasonable. (Floveyor Intemat.,
Constance, Oakland, CA 94612, ONGARO PC, Attn: Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 792-
Bibbes, Kirsten McNelly , San Francisco, CA 94111. 794.)

Judges: loana Petrou. The U.S. Supreme Court recognizes two types of
personal jurisdiction: general and specific. (Bristol-
Opinion by: loana Petrou Myers, supra, 137 S.Ct. at pp. 1779-1780.) The primary
focus of the inquiry is the defendant's relationship to the
Opinion forum state. (Id. at p. 1779.) It is undisputed by the
parties that Defendant is not a resident of this state;
Defendant was formed in Ohio; Defendant's principal
place of business is in Ohio; and therefore, general
Order jurisdiction is unavailable.
 Page 2 of 4
2018 Cal. Super. LEXIS 86827, *2

Specific jurisdiction requires [*3] a showing that "(1) Ins. Companies v. Gordon Trucking, Inc. (2008) 165
"the defendant has purposefully availed himself or Cal.App.4th 445, 450 [party cannot use own responses
herself of forum benefits"... (2) "the 'controversy is as evidence]; Appleton v. Superior Court (1988) 206
related to or "arises out of' [the] defendant's contacts Cal.App.3d 632, 636 [unsworn responses are not valid
with the forum'"... and (3)"'the assertion of personal responses].)
jurisdiction would comport with "fair play and substantial
justice[.]'"'(Pavlovich v. Superior Court (2002) 29 Cal.4th Plaintiffs deposition transcript excerpts are admissible
262, 269 [citing Burger King Corp. v. Rudzewicz (1985) evidence because they were authenticated by the court
471 U.S. 462, 472-473].) Although Defendant brought reporter. (Greenspan v. LADT, LLC (2010) 191
the instant Motion, Plaintiff bears the initial burden of Cal.App.4th 486, 523.) In pertinent part, Plaintiff testified
proof on the first and second essential elements before that as a young boy, he handled pyrometric cones while
the burden shifts to Defendant to disprove the third. helping his grandmother Ellen Braito make pottery in the
(Floveyor, supra, 59 Cal.App.4th at 794 [holding basement of her Oakland home on Lawton Avenue.
defendant may "stand mute"].) Braito's right leg was removed due to a diagnosis of hip
cancer before Plaintiffs birth, and as a result, she
Like most pretrial motions, a motion to quash is not a walked on crutches. The relevant [*5] timeframe at
determination of the merits of the case. (School Dist. of issue is the overlap between Plaintiff and Braito's
Okaloosa County v. Superior Court (1997) 58 lifespans, from 1966 to 1976.
Cal.App.4th 1126, 1133-1134.) A motion to quash is
"strictly limited to the question of jurisdiction over the However, it is clear that Plaintiff lacks direct evidence in
defendant." (Id.) In order to decide that limited question, the form of percipient knowledge of the specific retailers
the Court has the power to resolve issues of fact under from whom Braito purchased pyrometric cones, or even
the applicable rules of evidence. (Ziller Electronics Lab how she actually acquired the cones that he saw. No
such evidence has been submitted.
GmbH v. Superior Court (1988) 206 Cal.App.3d 1222,
1234.) The Court must form its own independent
It is also clear that Plaintiff lacks credible direct evidence
conclusions about whether the plaintiff has submitted
that the cones he personally handled in his
probative evidence of specific jurisdictional facts. (Id. at
grandmother's studio were Orton pyrometric cones (as
p. 1233.) In this context, the Court "is not bound to
opposed to some other manufacturer's product). The
accept as true the sworn testimony of a witness even in
Court credits Plaintiffs candid inability to identify the
the absence of evidence contradicting it... ." (Warner
pyrometric cones he saw as Orton cones on both direct
Bros. Records, Inc. v. Golden West Music Sales (1974)
and cross-examination, over the self-serving refreshing
36 Cal.App.3d 1012, 1017, fii. 7.) The Court [*4] is also
of his memory by his own counsel on re-direct.
entitled to ignore flawed evidence even if no objection is
(Compare Watts Depo Trans., vol. 1, 29:11-13 [on direct
made. (Inselberg v. Inselberg (1976) 56 Cal.App.3d 484,
could not recall "kind of packaging they came in"];
489.)
29:14-19 [on direct able to recall he was "taking cones
PLAINTIFF'S EVIDENTIARY SHOWING out of something" but not whether "they were pyrometric
cones or not or what they were in"] and 119:18-23 [on
Despite a continuance to allow jurisdictional discovery, cross-examination admitting "I do not remember
Plaintiff does not carry his burden of proof to establish whether she worked specifically ... with Orton products"]
the second essential element of specific jurisdiction by with vol. 3, 608:18-609:18 [counsel refreshing [*6]
the preponderance of the evidence. (Floveyor, supra, 59 memory on re-direct with purported image of "box of
Cal.App.4th at 792-794; see F. Hoffinan-La Roche, Inc. Orton cones"]; see Frio v. Superior Court (1988) 203
v. Superior Court (2005) 130 Cal.App.4th 782, 794.) The Cal.App.3d 1480, 1495 ["the trial judge must determine
Court lacks (See Ziller Electronics, supra, 206 whether the device of refreshing recollection is merely a
Cal.App.3d at p. 1233 [plaintiff presented evidence of subterfuge to improperly suggest to the witness the
ongoing relationship with another entity but only "pure testimony expected of him"].)
speculation" linked other entity to moving defendant].)
After a continuance for jurisdictional discovery, Plaintiff
Plaintiffs unverified Complaint and unverified responses submits supplemental evidence to the effect that during
to standard interrogatories are not admissible evidence. the relevant timeframe, Orton was selling at least 12
(Sheard v. Superior Court (1974) 40 Cal.App.3d 207, million cones per year, and sold cones on at least 113
212 [unverified complaint not evidence]; Great American occasions to at least eight California distributors,
 Page 3 of 4
2018 Cal. Super. LEXIS 86827, *6

including Leslie Ceramics, Ceramics & Crafts Supply, facts established and not speculation or guesses].)
Westwood Ceramics, Stewarts of California, Marin
Ceramic Supply, Lee's Ceramic Supply, S. Paul Ward, Despite being granted leave for jurisdictional discovery
and Western Ceramic Supply. Plaintiffs evidence also on that issue, Plaintiff does not present any evidence as
shows that Leslie Ceramics was located on San Pablo to who were the manufacturers of pyrometric cones and
Avenue in Berkeley, within five miles of Braito's Oakland their respective market share. Plaintiff does not present
home, and that Western Ceramics & Supply Company any substitute scenario, such as evidence that
and Ceramics & Crafts Supply were both located in Defendant's distributors were required to sell only Orton
cones and no others, and that those distributors were
San Francisco, about 10 and 11 miles from the Braito the predominant sources of pyrometric cones in
residence. California. Plaintiff does not present sufficient
circumstantial evidence to narrow the range of possible
Plaintiffs evidentiary showing is sufficient to establish scenarios to the point where the Court could reasonably
the first essential element of purposeful availment, by infer that it is probable and not merely possible that
showing that Defendant was purposefully selling Plaintiffs alleged injury is related to or arises out of
pyrometric cones into the California market. [*7] Defendant's forum-related conduct. (See Leslie G. v.
(Cassiar Min. Corp. v. Superior Court (1998) 66 Perry & Associates (1996) 43 Cal.App.4th 472, 483;
Cal.App.4th 550, 555-556.) Bristol-Myers, supra, 137 S.Ct. atp. 1781.)

In contrast, Plaintiff does not establish the second It should be clear at this point that the foregoing analysis
essential element of a substantial connection between does not actually depend upon Plaintiffs ability to
the controversy and the forum. (Burger King Corp., identify the cones he saw as Orton cones. Assuming
supra, 471 U.S. at pp. 472-475.) Plaintiffs evidence arguendo that Plaintiff had credibly identified Orton
merely shows that Orton pyrometric cones were being cones, the Court would still have to speculate as to how
regularly shipped to three stores within a few miles of they came into Braito's possession. Even if product
his grandmother's home during the relevant timeframe. identification or chain of custody were [*9] material to
That is not enough to show that Plaintiffs alleged injuries the foregoing analysis, the Court is entitled to hold
arise out of or relate to those Orton cones. (Bristol- Plaintiff to his burden of proof regardless of whether a
Myers, supra, 137 S.Ct. at p. 1781 [quoting Goodyear particular fact goes to both jurisdiction and the merits of
Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. the action. (Automobile Antitrust, supra, 135 Cal.App.4th
915, 931 fh. 6 ("[E]ven regularly occurring sales of a at pp. 112-114.) Indeed, Plaintiff acknowledges this
product in a State do not justify the exercise of (Pl.'s Further Supp. Mem. at 4:21-25 [citing Automobile
jurisdiction over a claim unrelated to those sales"); see Antitrust]) as the Automobile Antitrust court rejected the
also Felix v. Bomoro Kommanditgesellschaft (1987) 196 notion that the trial court was required to draw
Cal.App.3d 106, 116-117 [same].) inferences from the plaintiffs evidentiary showing in
favor of jurisdiction. (Id.) That would improperly lighten
The Court cannot draw a speculative inference that the plaintiffs burden of proof, "which is grounded in
effectively relieves Plaintiff of most of his burden of constitutional guarantees of due process." (Id.)
proof. (See In re Automobile Antitrust Cases I and II
(2005) 135 Cal.App.4th 100, 112-114 [refusing to draw Plaintiff relies upon inapposite authority to argue to the
inference in favor of plaintiff].) That was the entire point contrary. Plaintiff argues that Cassiar Mining held "mini-
of the sliding-scale test outlined in Vons Companies, 14 trials" on jurisdictional issues should be avoided. (Pl.'s
Cal.4th at 452-454, which has been squarely overruled. Further Supp. Mem. at 4:25-5:3.) Cassiar Mining cites
(Bristol-Myers, supra, 137 S.Ct. at p. 1781.) Vons as the basis of that holding, which accordingly is
no longer good law. (Cassiar Min. Corp., supra, 66
What is missing here is any evidence to support a Cal.App.4th at pp. 553, 557-559; see Sei Fujii v. State
nonspeculative inference that if Braito acquired a (1952) 38 Cal.2d 718, 728 ["it is settled that the authority
pyrometric cone by whatever means-from the three Bay of an older case may be as effectively dissipated by a
Area stores, the five other California stores, art fairs, later trend of decision as by a statement expressly
mail-order retailers, or acquaintances-it was probably an overruling it"].) Borsuk v. Appellate Division of the
Orton cone and not some other manufacturer's Superior Court (2015) 242 Cal.App.4th 607, 611-616
cone. [*8] (See Mann v. Columbia Pictures, Inc. (1982) merely held that a motion to quash is not a proper
128 Cal.App.3d 628, 651 [inferences flow only from vehicle to challenge improper service of a three-day
 Page 4 of 4
2018 Cal. Super. LEXIS 86827, *9

notice [*10] in an unlawful detainer action-it goes only

to the merits and not the trial court's jurisdiction. Borsuk
does not affect a true Automobile Antitrust situation
where a particular fact goes to both merits and
jurisdiction. Kroopf v. Guffey (1986) 183 Cal.App.3d
1351, 1358-1360 involved a motion to quash which was
granted without comment and turned on the credibility of
the parties' testimony in their written affidavits. Kroopf is
inconsistent with Floveyor in that it examined whether
the plaintiff had contravened the defendant's evidence,
rather than whether the plaintiff had proven purposefill
availment and substantial connection. (Compare Kroopf,
supra, 183 Cal.App.3d at pp. 1358-1360 with Floveyor,
supra, 59 Cal.App.4th at pp. 792-794.) A careful reading
of Kroopf reveals that it did not turn on the parties' vastly
different factual narratives, but on the various
documents proffered by the plaintiff as credible
evidence of the parties' cohabitation at a Beverly Hills
address. (Kroopf, supra, 183 Cal.App.3d at pp. 1355,
1359-1360.) Plaintiff does not proffer that kind of direct
evidence here, such as a receipt showing that Braito
bought a package of Orton cones from a local store.

Plaintiff incorrectly asserts that the Court is violating his

right to due process. The Court's prior tentative rulings
and orders gave adequate notice to Plaintiff that he had
not met his burden of [*11] proof. Both orders explained
what Plaintiff needed to discover and prove to ensure
that the Court's assertion of personal jurisdiction would
be consistent with Defendant's right to due process. The
Court specifically cited a 1971 Tax Court case
describing the structure of the market for pyrometric
cones, not as evidence in and of itself (which would
violate Sosinsky v. Grant (1992) 6 Cal.App.4th 1548,
1562-1570), but to suggest what kind of circumstantial
evidence would meet Plaintiffs burden of proof. Again,
no such evidence was provided.

Dated: 05/08/2018

/s/ loana Petrou

loana Petrou

End of Document