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Oregon's Wild Harvest v. Superior Court of San Francisco County11/14/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Oregon's Wild Harvest (OWH), an Oregon corporation, is one of several defendants in a case in which real party Ganir alleges that the wrongful death of his wife was caused by dietary supplements manufactured and distributed by OWH. By timely petition for writ of mandate (Code Civ. Proc., § 418.10, subd. (c)), OWH challenges an order of the San Francisco Superior Court denying its motion to quash service of summons (§ 418.10, subd. (a)(1)), and its companion motion to stay or dismiss the action on the ground of inconvenient forum. (§ 418.10, subd. (a)(2).)
The parties are familiar with the background of this case. We therefore need not reiterate it here. (People v. Garcia (2002) 97 Cal.App.4th 847.) Agreeing that the superior court should have granted the motion to quash service summons, we previously stayed proceedings against OWH, and issued our alternative writ. We explained that real party failed to carry the burden of establishing substantial, continuous, and systematic activities in California by OWH, and we afforded the superior court an opportunity to correct its error. It declined to do so. Accordingly, we now issue our peremptory writ.
Ganir first contends that OWH submitted itself to the jurisdiction in California when it made its motion to quash without making a special appearance. In doing so, real party ignores section 418.10, subdivision (e)(1) which provides that the making of a motion to quash does not constitute a general appearance.
On the merits of the jurisdictional question, real party Ganir contends that the evidence on the motion establishes OWH's extensive contacts with California. The record is otherwise. The evidence produced by OWH demonstrated that real party's wife purchased OWH's product in Oregon, used it there, and died there on January 27, 2002. The product itself was manufactured in Oregon. OWH is incorporated in Oregon. It does not maintain a place of business in California, is not registered to do business in California, owns no property in the state, and has no bank accounts in the state. It has no office or employees in California. OWH's sales in California were less than one half of one percent of its total volume at the time of decedent's death. The sales occurred through an independent, nonexclusive broker. OWH has advertised in California on only four or five occasions through co-op ads, and on a limited basis through distributor's fliers which are not provided to retail customers.
Real party Ganir responded with the declaration of his attorney reciting information obtained from an unauthenticated webpage, a copy of which was attached to counsel's declaration. Counsel stated that OWH sold its products over the Internet, and sold over 190 products in more than 50 stores in California. Exhibits A and B to the declaration listed the names of stores, but did not list any products. The declaration in any event was hearsay. OWH made a timely hearsay objection to this evidence. (Evid. Code § 1200.)
Real party Ganir bore "the initial burden of demonstrating facts justifying the exercise of jurisdiction" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449). Ganir's evidence was the subject of a proper hearsay objection, and absent that evidence, did not sustain his burden that OWH has engaged in substantial, continuous and systematic contacts wi
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