Case Number: BC548750??? Hearing Date: April 25, 2016??? Dept: 50
Superior Court of California
County of Los Angeles
Department 50
MICHAEL OMIDI
Plaintiff,
vs.
KEVIN SCHUNKE, et al.
Defendants. Case No.: BC 548750
Hearing Date: April 25, 2016
Hearing Time: 8:30 a.m.
[TENTATIVE] ORDER RE:
DEFENDANT DR. LAURIE S. CURTIN?S MOTION TO QUASH SUMMONS AND FIRST AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION
Background
Plaintiff Michael Omidi (?Plaintiff?) filed the instant action on June 16, 2014. The action is brought against several Defendants including National Residence Matching Program (?NRMP?) and Laurie Curtin (?Curtin?). Curtin is the Chief Policy Officer of NRMP. (Curtin Decl. ?1.)
NRMP previously moved to quash the summons and complaint for lack of personal jurisdiction. On January 8, 2016, the Court denied the motion, finding that NRMP was subject to specific personal jurisdiction. The Court determined that NRMP has significant contacts with California through its ongoing business activity, and that the instant litigation bears a substantial connection to that forum relationship.
Curtin now moves to quash the summons and First Amended Complaint (?FAC?) for lack of personal jurisdiction pursuant to CCP ?418.10(a)(1).
Evidence
Curtin?s request for judicial notice is granted. (Ev. Code ??452 (d), (h).)
Curtin filed objections to the Declaration of Robert Rice (?Rice?), Plaintiff?s counsel, and the attached exhibits. The Court did not receive a copy of either one. Nevertheless, based upon the objections which identify the contents of the purported Rice Declaration, and the list of exhibits (without any reference to a declaration) that appears at the end of Plaintiff?s opposition to the motion (7:9-25), it appears that Plaintiff has attempted to proffer various exhibits purporting to demonstrate additional contacts by Curtin with California by way of counsel?s own declaration. There is no indication that Rice can authenticate the documents or that he has personal knowledge of the facts Plaintiff contends the exhibits establish. For all these reasons, the objections are sustained.
The Court notes that Curtin?s counsel did not receive Plaintiff?s opposition papers until April 18, 2016. The proof of service signed by Rice shows that the opposition was served by him via regular mail on April 12, 2016 in violation of CCP ?1005(c). Additionally, the opposition also was filed one day late on April 13, 2016 in violation of CCP ?1005(b). Nevertheless, the Court elects to exercise its discretion to consider the opposition. HOWEVER, PLAINTIFF AND RICE ARE NOW ON NOTICE THAT ANY FAILURE BY THEM TO COMPLY WITH CCP ?1005 IN THE FUTURE WILL NOT BE OVERLOOKED AND THE COURT WILL NOT CONSIDER ANY NONCOMPLIANT DOCUMENTS SERVED AND OR FILED BY THEM.
Discussion
Personal Jurisdiction Overview
?California courts may exercise jurisdiction on any basis that is not inconsistent with the state and federal Constitutions. Thus, the inquiry in California is whether the assertion of personal jurisdiction comports with the limits imposed by federal due process.? (Young v. Daimler AG (2014) 228 Cal.App.4th 855, 865 (internal quotations and citations omitted).) Due process permits courts to exercise personal jurisdiction over nonresidents who have ?minimum contact? with the forum state such that the exercise of jurisdiction does not offend ?traditional notions of fair play and substantial justice.? (Int’l Shoe Co. v. Washington (1945) 326 U.S. 310, 316.)
?Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are substantial … continuous and systematic. In such a case, it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum. Such a defendant’s contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction. ? If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum[.]? (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445-446 (internal quotations and citations omitted).) A nonresident may be subject to specific jurisdiction if a three-prong test is met. ?First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state. Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.? (Gilmore Bank v. AsiaTrust New Zealand Ltd. (2014) 223 Cal.App.4th 1558, 1568 (emphasis in original) (internal citations omitted).)
?When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.? (Vons Companies, supra, 14 Cal.4th at 449 (internal citations omitted).)
Here, Plaintiff does not contend that Curtin is subject to general jurisdiction. Thus, the Court need only engage in an analysis of specific jurisdiction.
Effect of the Court?s Determination that NRMP is Subject to Personal Jurisdiction
Initially, the Court notes that Curtin?s contacts with California are not to be judged according to NRMP?s contacts with California. ?Each defendant’s contacts with the forum State must be assessed individually.? (Calder v. Jones (1984) 465 U.S. 783, 790.) ?[J]urisdiction over an employee does not automatically follow from jurisdiction over the corporation which employs him.? (Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 781, fn. 13.)
Acts in Curtin?s Official Capacity
Curtin argues that personal jurisdiction cannot be exercised over her for conduct within her official duties as NRMP?s Chief Policy Officer. In the motion to quash, Curtin primarily relies on Mihlon v. Sup. Ct. (1985) 169 Cal.App.3d 703. There the Court stated, ?for jurisdictional purposes the acts of corporate officers and directors, in their official capacities, are acts exclusively of (qua ) the corporation, and are thus not material for purposes of establishing minimum contacts as to individuals.? (Id. at 713.) This dictum was rejected in subsequent Court of Appeal decisions. (See Seagate Tech. v. A. J. Kogyo Co. (1990) 219 Cal.App.3d 696, 701; Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 117.) The United States Supreme Court has also rejected this approach. (Keeton, supra, 465 U.S. at 781, fn.13 (?we today reject the suggestion that employees who act in their official capacity are somehow shielded from suit in their individual capacity.?).)
In rejecting the ?fiduciary shield doctrine,” the Court in Seagate stated, ?some acts taken by a corporate officer are not only the acts of the corporation, but the acts of the individual. Where an act of this type creates contact with the forum state, that contact may be the contact of the individual as well as the contact of the corporation and, therefore, should be considered in determining if the forum state has personal jurisdiction over the individual.? (219 Cal.App.3d at 702.) Accordingly, whether Curtin was acting in her official capacity is not determinative. A nonresident corporate officer acting on behalf of a corporation may be subject to personal jurisdiction if their acts would otherwise subject them to personal jurisdiction. Whether Curtin was acting in her official capacity is not entirely irrelevant however. For example, no personal contact between an officer and the forum state would result ?from doing nothing more than ratifying an act taken by the corporation or by another corporate officer.? (Id. at 704.)
Purposeful Availment
?For purposes of the purposeful availment prong, the United States Supreme Court has described the forum contacts necessary to establish specific jurisdiction as involving variously a nonresident who has purposefully directed his or her activities at forum residents, or who has purposefully derived benefit from forum activities, or purposefully avail[ed himself or herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, or deliberately has engaged in significant activities with a State or has created continuing obligations between himself and residents of the forum.? (Gilmore Bank v. AsiaTrust New Zealand Ltd. (2014) 223 Cal.App.4th 1558, 1568 (emphasis in original) (internal citations omitted).) ?[A] court must apply a highly realistic approach on a case-by-case basis and select the most appropriate test for purposeful availment based on the particular facts presented.? (Id. at 1571 (internal quotations omitted).)
Curtin?s Contacts with California
In arguing that Curtin has sufficient contacts with California, Plaintiff relies on the evidence offered by Curtin in support of his motion. This evidence, inter alia, indicates that Curtin resides in Virginia and works in Washington, D.C. (Curtin Decl. ?3.) She has no assets or liabilities in California, and she does not conduct business in California. (Curtin Decl. ??4-5.) Curtin acknowledges that she coordinates the waiver program and oversees ?the process for investigating whether violations of the Match Participation Agreement may have occurred.? (Curtin Decl. ?8.) She collects information, provides a preliminary report to ?the affected parties and persons who may have knowledge of the issue for review and comment,? revises the report ?based upon comments received,? transmits the revised report to ?a Review Panel composed of members of the NRMP Board,? and she communicates their decision ?to the affected applicant or program.? (Id.) She testified that she was assigned to investigate whether Plaintiff violated the Match Participation Agreement. (Curtin Decl. ?18.) Curtin states that she conducted the investigation entirely from NRMP?s principal place of business in Washington, D.C. (Id.) Curtain also testified that she ?was not part of NRMP?s review panel,? and she did not ?personally issue any sanctions against Dr. Omidi.? (Curtin Decl. ?30.)
Contrary to Plaintiff?s arguments, there is no evidence that Curtin (a) ?determines NRMP policy? (opposition, 1:10), or (b) ?directed NRMP?s conduct and policy toward Dr. Omidi? (opposition, 3:7). Plaintiff proffered no evidence that Curtain initiated the investigation of Plaintiff (as opposed to being assigned the task as Curtin testified), nor did Plaintiff proffer evidence to establish that Curtain personally sanctioned Plaintiff or participated in the review panel?s decision to sanction Plaintiff.
The only evidence of contacts between Curtin and California consists of a series of correspondence related to the investigation which was exchanged between Curtin, Plaintiff and certain individuals at UCSD. (Curtin Decl. ??13-26.) The fact that Curtin communicated with individuals that reside in California does not establish that Curtin purposefully availed herself of the privilege of conducting activities within California.
In Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 1347, the Court held that the use of email and telephone by a nonresident directed towards the forum state may establish sufficient minimum contacts with California to support jurisdiction. However, in Hall, the nonresident was contracting with a California resident and creating continuing obligations with that resident. (Id.) Here, Curtin did not enter into continuing obligations with California residents. The evidence indicates that Curtin was merely performing the job assigned to her by NRMP by investigating the circumstances surrounding UCSD?s waiver request and compiling the input into a report that was provided to Plaintiff and others for input before it was finalized.
Plaintiff cites to Seagate, supra, 219 Cal.App.3d 696, for the proposition that even limited contacts may be enough to support personal jurisdiction if they cause an ?effect? in the forum state. (219 Ca.App.3d at 704-705.) However, in Seagate, the nonresident defendant stood to gain an economic benefit from his forum contact. This is how the Court in Seagate distinguished its facts from Sibley v. Superior Court (1976) 16 Cal.3d 442, 446, an action where the mere causing of an ?effect? in California was held insufficient to afford a basis for jurisdiction. Here, unlike in Seagate, there is no evidence that Curtin gained any benefit from her contacts with California.
Plaintiff also relies on the January 8, 2016 ruling on NRMP?s motion to quash to argue that the conduct which formed the basis for exercising jurisdiction over NRMP is actually Curtin?s conduct. However, the Court found that NRMP had purposefully availed itself of California?s benefits largely based on evidence that NRMP entered into a three-way agreement with Plaintiff in California (as the match applicant party), and UCSD in California (as the match medical school party). This agreement is unrelated to Curtin?s contacts with California. Moreover, the evidence supported a finding that NRMP ?created continuing obligations between itself and California residents? and ?purposefully derived (and continues to derive) benefits from its activities in California.? The same cannot be said for Curtin. Curtin did not personally enter into any contracts or continuing obligations with California residents. Nor is there any evidence that Curtin has derived any benefit from her limited contacts with California.
Plaintiff also refers to the FAC?s allegations to argue that Curtin has sufficient contacts with California. This argument is unpersuasive. An unverified pleading has no evidentiary value in determining personal jurisdiction. (Mihlon, supra, 169 Cal.App.3d at 710.)
Finally, Curtain asserts that Plaintiff has not demonstrated that she engaged in any tortious conduct in connection with her investigation as required by the court in Seagate, supra, 219 Cal. App. 3d at 701-4. (Motion, 12:10-20; reply, 4:11-26.) Curtain presented evidence that, at the suggestion of Plaintiff?s counsel, Mr. Garcia, she contacted Dr. Jamieson as well as
Dr. Madani, regarding their knowledge of Dr. Omidi?s discussion of his legal problem. (Curtin Decl. ??21-26.) She ?include[ed] her conversation with Dr. Jamieson and Dr. Madani in her report? and she told them ?any statement by them needed to be in writing.? (Motion, 12:18-20; Curtain Decl. ??23, 25-28). She also sent them a copy of NRMP?s preliminary report. (Curtin Decl. ?26.) The two doctors did not submit anything in writing. (Curtin Decl. ?27.) She does not recall them saying anything that contradicted the claims of UCSD in its waiver request. (Curtin Decl. ?28.) None of this testimony is contradicted by evidence from Plaintiff. Moreover, this evidence does not demonstrate tortious conduct.
In Seagate, supra, 219 Cal, App. 3d at 701, the court states that officer and director liability ?stems from their own tortious conduct, not from their status as directors or officers of the enterprise.? They will be immune unless they ?authorize,? ?direct,? or ?in some meaningful sense actively participat[e] in the wrongful conduct.? Here, the complaint by Plaintiff (which is not evidence) is that Curtain ?willfully failed or refused to include the content of the conversations with Drs. Jamieson and Madani into the Final NRMP Report,? and her recollection that they ?confirmed UCSD?s version of the facts? violated Plaintiff?s civil rights and deprived him of his property interests without due process of law. (Opposition, 4:14-17, and paragraph 44 of the First Amended Complaint). As noted above, the only evidence proffered refutes the claim that the conversations with the doctors was omitted. There is no evidence that demonstrates that Curtain?s conduct was tortious.
Based on the evidence presented, Plaintiff has failed to establish that Curtin purposefully availed herself of California?s benefits. Accordingly, Plaintiff has not met his burden of demonstrating facts justifying the exercise of jurisdiction over Curtin.
Conclusion
Based on the foregoing, Curtin?s Motion to Quash is GRANTED. Plaintiff?s claims against Curtin are dismissed. (CCP ?581(h).)
Curtin is ordered to give notice.