Pending - Other Pending
Personal Injury - Other Personal Injury
MITCHELL L. BECKLOFF
KABRINS HOWDY S.
ACE ATTORNEY SERVICE INC.
MURPHY ROSEN LLP
NOVELLA DIEGO DOUGHERTY
MYERS PAMELA L.
SOTO JINA K.
MURPHY PAUL D. ESQ.
STEIN MICHAEL DAVID
MURPHY PAUL D.
SHALLMAN DANIEL N.
CSILLAG DANIEL N.
STEIN MICHAEL D.
AZLIN KRISTINA S.
STONE SAMUEL J
2/2/2021: Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT ;B670095, NA 10/26/20;
11/6/2020: Notice of Change of Address or Other Contact Information
11/5/2020: Appeal - Ntc Designating Record of Appeal APP-003/010/103
10/26/2020: Appeal - Notice of Appeal/Cross Appeal Filed
10/27/2020: Notice of Filing of Notice of Appeal (Unlimited Civil)
10/16/2020: Notice of Ruling
10/7/2020: Minute Order - MINUTE ORDER (COURT ORDER)
10/7/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/07/2020
9/28/2020: Notice of Lodging - NOTICE OF LODGING PLAINTIFFS HOWDY S. KABRINS AND DORIS WEITZ'S NOTICE OF LODGING OF REPORTER'S TRANSCRIPT OF PROCEEDINGS OF SEPTEMBER 25, 2020
9/25/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS; STATUS CONFERENCE)
8/26/2020: Notice of Ruling
8/7/2020: Response - RESPONSE RESPONSE TO THE SUPPLEMENTAL KABRINS DECL.
8/7/2020: Response - RESPONSE RESPONSE TO OBJECTION TO LATE-FILED EVIDENCE
8/4/2020: Opposition - OPPOSITION OPPOSITION TO RJN
8/4/2020: Objection - OBJECTION EVIDENTIARY OBJECTIONS
8/4/2020: Reply - REPLY REPLY ISO MOTION TO QUASH
8/4/2020: Reply - REPLY REPLY TO PLAINTIFF'S EVIDENTIARY OBJECTIONS & SUPPLEMENTAL DECLARATION
8/4/2020: Declaration - DECLARATION AZLIN DECLARATION ISO MOTION TO QUASH
DocketAppeal Record Delivered; Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (;B670095, NA 10/26/20;); Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Reporter Appeal Transcript Process Fee Paid; Filed by HOWDY S. KABRINS (Appellant); DORIS WEITZ (Appellant)[+] Read More [-] Read Less
DocketAppeal - Reporter Appeal Transcript Process Fee Paid; Filed by HOWDY S. KABRINS (Plaintiff); DORIS WEITZ (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Change of Address or Other Contact Information; Filed by Michael T. Boardman (Attorney)[+] Read More [-] Read Less
DocketNtc Designating Record of Appeal APP-003/010/103; Filed by HOWDY S. KABRINS (Appellant)[+] Read More [-] Read Less
DocketNotice of Filing of Notice of Appeal (Unlimited Civil); Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by HOWDY S. KABRINS (Appellant); DORIS WEITZ (Appellant)[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by DIEGO DOUGHERTY NOVELLA (Defendant)[+] Read More [-] Read Less
Docketat 10:20 AM in Department M; Court Order[+] Read More [-] Read Less
Docketat 1:30 PM in Department 92; Hearing on Motion to Quash ((Matter continued)) -[+] Read More [-] Read Less
DocketMinute order entered: 2018-01-30 00:00:00; Filed by Clerk[+] Read More [-] Read Less
DocketNotice Re: Continuance of Hearing and Order; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketNOTICE OF CONTINUING SPECIALLY APPEARING DEFENDANT DIEGO DOUGHERTY NOVELLA'S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT[+] Read More [-] Read Less
DocketMotion to Quash; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketSPECIALLY APPEARING DEFENDANT DIEGO DOUGHERTY NOVELLA'S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; ETC[+] Read More [-] Read Less
DocketComplaint Filed[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT FOR: (1) WRONGFUL DEATH[+] Read More [-] Read Less
DocketComplaint; Filed by HOWDY S. KABRINS (Plaintiff); DORIS WEITZ (Plaintiff)[+] Read More [-] Read Less
Case Number: ****0095 Hearing Date: September 25, 2020 Dept: M
CASE NAME: Howdy S Kabrins, et al. v. Deigo Dougherty Novella
CASE NO.: ****0095
MOTION: Defendant Novella’s Motion to Quash Service of Summons
On July 26, 2017, Plaintiffs Howdy S. Kabrins, Doris Weitz, and Roes 1 - 50 filed a wrongful death action against Defendant Diego Dougherty Novella (“Defendant” or “Novella”) and Does 1 - 50. Plaintiffs allege that Defendant murdered Gabriela Kabrins Alban (“Gabriela”) on or about the evening of July 28, 2015 and into the morning of July 29, 2015, at the Camps Bay Retreat Hotel in Cape Town, South Africa. (Compl. ¶ 1.) Plaintiffs assert that jurisdiction and venue is proper “because, among other reasons, Gabriela—the murder victim —resided in Los Angeles County when she was murdered, because both Plaintiffs also resides in Los Angeles County, because Defendant owns a residence in Los Angeles County, and because, on information and belief, Defendant purposefully contacted Gabriela using electronic and other means of communication directed at Los Angeles County to lure Gabriela away from California to South Africa.” (Compl. ¶ 10.)
Plaintiffs allege that Gabriela and Defendant have a history together—they dated in college and after her 2014 divorce, Defendant reestablished contact with Gabriela and Gabriela moved to Guatemala to live with him (Compl. ¶¶ 11-12.). Gabriela left Defendant at the end of 2014 and moved back to Los Angeles. (Id. ¶ 15.) Plaintiffs allege that Defendant knew about Gabriela’s Lyme Disease and wrongfully induced her into leaving California to travel to South Africa. “On information and belief, from April through June 2015, Defendant consistently harassed and pressured Gabriela to travel to meet him in South Africa, all under the guise of attending this retreat -- using phone calls and text messages to get her to travel away from Los Angeles. Defendant was insistent that the Magaliesberg retreat was the cure for Gabriela's Lyme's decease and that she had to attend. Eventually, Gabriela capitulated, first traveling back to Guatemala to drop off her dogs, and then flying to Cape Town to meet Defendant. Gabriela left Los Angeles on June 14, 2015.” (Id. ¶ 17.) Plaintiffs allege that Defendant did not dispute that he killed Gabriella. (Id. ¶ 27.)
“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., ; 418.10 (a)(1).)
Personal jurisdiction takes two forms—general and specific. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) General jurisdiction exists when a nonresident defendant has “substantial . . . continuous and systematic” contacts in the forum state. (Id.) General jurisdiction only exists when a defendant’s contacts with the forum state “are so constant and pervasive as to render it essentially at home” there. (Daimler AG v. Bauman (2014) 571 U.S. 117, 122.) “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits [citations.]; (2) the controversy is related to or arises out of [the] defendant's contacts with the forum [citations.]; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice [citations.].” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (internal quotations omitted).)
“Although the defendant is the moving party and must present some admissible evidence (declarations or affidavits) to place the issue before the court (by showing the absence of minimum contacts with the state), the burden of proof is on the plaintiff to establish, by a preponderance of the evidence, a basis for jurisdiction (minimum contacts between the defendant and the forum state)” (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131 (School Dist.) “The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362 (citing In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110.)) If the plaintiff meets this burden, “it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Ibid.)
Request for judicial notice
Plaintiffs request judicial notice of exhibits A – C. Defendant filed an opposition to the request, arguing that Exhibit C is not judicially noticeable. Defendant does not object to exhibits A and B. Since Exhibits A and B are court records, the court GRANTS judicial notice of these documents. Exhibit C is an “audio transcription of excerpts of the South African Court’s sentencing hearing held on September 6, 2018, sentencing Defendant to 20 years in prison.” Plaintiffs argue that Exhibit C is judicially noticeable under Evidence Code 452(h). Under Evidence Code 452, “Judicial notice may be taken of . . . (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452(h).) Under Evidence Code section 452(h), facts and propositions that are not subject to dispute include “for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145, as modified (Feb. 9, 1995) [citing Comment, Assem.Judiciary Comm. accompanying enactment of Evid.Code, ; 452, 29B Wests Ann.Evid.Code, pp. 351–352.)].). Defendant argues that Plaintiffs attempt to use the contents of Exhibit C to prove a disputed fact in this action – that Defendant intentionally lured Gaby to South Africa for a wrongful purpose. Since Defendant disputes this fact and judicial notice cannot be used to establish a disputed fact, Exhibit C is not subject to judicial notice. Therefore, the Court DENIES Plaintiffs’ request for judicial notice of Exhibit C.
Plaintiffs object to the declaration of Sam Stone. Plaintiffs’ objection is SUSTAINED. Plaintiffs submit reply objections to the evidence defendant submitted in support. Here, the Court only considers the translations to the documents – Exhibits A – D and does not consider any new evidence that was not filed in support of the amended motion to quash.
Specially Appearing Defendant’s Objections to the Murphy Declaration
Defendant submits 5 objections to this declaration.
Objection no. 1 – Sustained. The Court will rely on Exhibit A-C to the Azlin Declaration.
Objection no. 2 – Sustained. The Court will rely on Exhibit D to the Azlin Declration.
Objection no. 3 – Overruled.
Objection no. 4 – Sustained. Relevancy grounds.
Objection no. 5 – Overruled.
Specially Appearing Defendant’s Objections to the Kabrins Declaration
Defendant submits 17 objections to this declaration.
Objection no. 1 – Overruled. Defendant’s admission is a statement against interest.
Objection no. 2 – Overruled. The declarant is unavailable as a result of Defendant’s conduct – forfeiture.
Objection no. 3 – Overruled
Objection no. 4 – Sustained as to “she had been misdiagnosed by her doctors and paid for it dearly with her health,” overruled as to the remainder.
Objection no. 5 – Sustained as to “at some point . . . correctly diagnosed Gaby with Lyme disease.” Overruled as to the remainder.
Objection no. 6 – Overruled.
Objection no. 7 – Overruled.
Objection no. 8 – Sustained as to “Doris separately talked to me about this possibility,” overruled as to the remainder.
Objection no. 9 – Sustained as to “ready to latch onto anything that gave her hope,” but overruled as to the remainder.
Objection no. 10 – Overruled.
Objection no. 11 – Overruled
Objection no. 12 – Overruled.
Objection nos. 13-17 – Sustained as inadmissible hearsay and lacking foundation.
Specially Appearing Defendant’s Objections to the Weitz Declaration
Defendant submits 15 objections to the Weitz declaration.
Objection no. 1 – Sustained from “which the doctors initially misdiagnosed as Addison’s disease” through the sentence ending in “new set of challenges for her.” Overruled as to the remainder.
Objection no. 2 – Overruled
Objection no. 3 – Overruled.
Objection no. 4 – Overruled
Objection no. 5 – Sustained
Objection no. 6 – Sustained as to “I told her that Diego had called me and told me to come get her,” overruled as to the remainder
Objection no. 7 – Overruled.
Objection no. 8 – Sustained as to “I was surprised by the conversation because Gaby was so enthusiastic” through the sentence ending with “been communicating with each other on a regular basis.” Sustained as to, “In this and subsequent conversations, I explored with Gaby . . . better option than the one in Germany” and “she also seemed excited that Diego would be part of this process.” Overruled as to the remaining statements in objection no. 8.
Objection no. 9 – Sustained, with the exception of the foundation for Exhibit 10.
Objection no. 10 – Overruled.
Objection no. 11 – Sustained as to “he apparently had dual citizenship in Italy and Guatemala,” but overruled as to the remainder.
Objection no. 12 – Overruled.
Objection no. 13 – Overruled.
Objection no. 14 – Sustained except “But Gaby told me that a big reason . . . that Diego would go with her.”
Objection no. 15 – Sustained as to “Attached hereto as Exhibit 13 are the transcripts . . . expressly incorporate that testimony into this declaration,” but overruled as to the remainder.
Specially Appearing Defendant’s Objections to the Nikesfat Declaration
Defendant submits 18 objections to the Nikesfat Declaration.
Objection no. 1 – Sustained starting at “I believe she felt the same way . . ..”
Objection no. 2 – Sustained.
Objection no. 3 – Sustained starting at “Initially, Gaby struggled to find a diagnosis . . ..”
Objection no. 4 – Sustained as to “Sometime in late 2014, Gaby’s condition was properly diagnosed as Lyme disease” and the sentence starting with “Gaby was frustrated and she explained to me . . ..” Overruled as to the remainder.
Objection no. 5 – Sustained as to “because it was too painful to walk” and “I can recall waiting for her at her front door front door . . . let me in.” Overruled as to the remainder.
Objection no. 6 – Overruled.
Objection no. 7 – Sustained as to “She told about how she felt” through “she was ‘devastated’ by it.” Overruled as to the remainder.
Objection no. 8 – Overruled.
Objection no. 9 – Sustained as to “while Gaby was still misdiagnosed” and “She texted me . . . Boston.” Overruled as to the remainder.
Objection no. 10 – Overruled.
Objection no 11 – Sustained.
Objection no 12 – Overruled.
Objection no. 13 – Sustained, except for the last portion starting with “I later spoke to Gaby about it . . ..”
Objection no. 14 – Sustained.
Objection no. 15 – Sustained as to “after doing this research, I pressed Gaby about whether she really wanted to do this, and suggested she try going to Germany first and seek treatment there before going to south Africa.” Overruled as to the remainder.
Objection no. 16 – Sustained starting with “While he and I agreed that . . .” and continuing for the remainder of the objection.
Objection no. 17 – Overruled.
Objection no. 18 – Sustained.
Specially Appearing Defendant’s Objections to Exhibits 1 – 29.
As a preliminary matter, the Court notes that there is no Exhibit 14.
Objections to Exhibits 1-10, 13, 16-24 and 29 are sustained.
Objection to Exhibits 25 and 26 are sustained as to the Spanish language portions.
Objection to Exhibit 11, 12, 15, and 27–28 are overruled.
As to the lodging of the video recording, there does not appear to be any issue as to whether the video recording is a true and correct recording of a portion of the judicial proceedings. While there are numerous evidentiary issues with some of the content, including but not limited to hearsay, speculation, and a lack of foundation as to the medical efficacy of Ibogaine, the Court will allow the lodging of the recording and address any internal evidentiary issues that are relevant to this Court’s determination of jurisdiction at the hearing.
On November 1, 2019, Defendant filed a motion to quash service of process of the complaint alleging wrongful death, arguing that the Court does not have general or specific jurisdiction over Defendant. Defendant argues, in part, that the Court does not have general jurisdiction over him because he is not a resident of California. (See updated Novella Decl. ¶ 6.) Plaintiffs do not argue that the Court has general jurisdiction over Defendant and the Court concludes that it does not have general jurisdiction over Defendant.
“A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits [citations.]; (2) the controversy is related to or arises out of [the] defendant's contacts with the forum [citations.]; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice [citations.].” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (internal quotations omitted).) “Although the defendant is the moving party and must present some admissible evidence (declarations or affidavits) to place the issue before the court (by showing the absence of minimum contacts with the state), the burden of proof is on the plaintiff to establish, by a preponderance of the evidence, a basis for jurisdiction (minimum contacts between the defendant and the forum state) . . ..” (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131.) When, as in this case, intentional torts are alleged, “[a] forum State's exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum.” (Walden v. Fiore (2014) 571 U.S. 277, 286.)
“The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362 (citing In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110.)) If the plaintiff meets this burden, “it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Ibid.)
Whether Defendant Purposefully Availed Himself of The Forum
Plaintiffs argue that Defendant purposefully directed his activities toward a resident of the forum, Miss Gabriela Kabrina Alban (hereinafter, “Gabriela”). Courts have identified various ways to demonstrate purposeful availment:
[P]urposeful availment occurs where a nonresident defendant purposefully direct[s] [its] activities at residents of the forum [citations omitted], purposefully derive[s] benefit from its activities in the forum [citations omitted], create[s] a substantial connection with the forum [citations omitted], deliberately has engaged in significant activities within the forum [citations omitted], or has created continuing obligations between [itself] and residents of the forum [citations omitted]
(HealthMarkets, Inc. v. Superior Court Plaintiffs argue that Defendant Novella directed activities at residents of the forum through his numerous communications to Gabreila starting in approximately May 2015. Plaintiffs argue that Defendant did this while knowing that she was a California resident and that she was in California. In support of this argument, Plaintiffs provide declarations from her parents, Doris Weitz and Howdy Kabrins, as well as a close friend, Arshia Niksefat.
Courts have held that “use of electronic mail and the telephone by a party in another state may establish sufficient minimum contacts with California to support personal jurisdiction.” (Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 1344.) In support of this position, Plaintiffs submitted Exhibits 25 and 26, which are communications between Gabriela and Defendant. While the Court sustained evidentiary objections to these exhibits, in part because they contained untranslated materials, Defendant provided the Court with Exhibits A – D, which contain certified translations of those same communications as well as additional email communications. There was no objection to Defendant’s exhibits.
In summary, Plaintiffs argue that Defendant induced Gabriela to seek treatment in South Africa for Lyme Disease on false pretenses, knowing that the proposed treatment would not work. Plaintiffs argue that Defendant represented that he thought the treatment could/would cure Gabriela’s Lyme disease. (Niksefat Decl. ¶¶ 14-16; Weitz Decl. ¶ 18.) While the Court sustained many objections to the declarations containing these allegations, including the declarations of Niksefat and Weitz, there still exists sufficient evidence to support Plaintiff’s contention that Defendant induced and/or convinced Gabriela to seek this treatment in South Africa. (Id.) Plaintiffs, however, have not submitted any evidence supporting their argument that Defendant personally made promises to Gabriela about the effectiveness of the Ibogaine treatment for Lyme Disease, or committed any other tort by convincing her to travel there.
Furthermore, while Plaintiffs allege that Defendant lured Gabriela to South Africa, they do not allege that he lured her there with the intention of killing her. Plaintiffs have pled the intentional tort of wrongful death. Therefore, under the “effects test,” the Court analysis of jurisdictional is cast through the lens of the pleading as to whether defendant directed his tortious conduct, wrongful death, at California. (See IMO Industries v. Kierkert AG (3rd Cir. 1998) 155 F.3d 254, 265 (“Calder “effects test” can only be satisfied if the plaintiff can point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum, and thereby made the forum the focal point of the tortious activity;” see also Burdick v. Superior Court, (2015) 233 Cal. App. 4th 8, (tortious conduct (Facebook postings) must be expressly aimed at California; c.f. Calder v. Jones, (1984) 465 U.S. 783, 789 (California had jurisdiction because the defendants expressly aimed their tortious conduct, defamation, at California.) While Plaintiffs were certainly harmed in California by Defendant’s conduct of murdering their daughter, Plaintiffs have not established that Defendant’s tortious conduct was directed at California resulting in their harm.
Whether The Controversy Is Related To Or Arises Out Of Defendant's Contacts With The Forum
Even if Plaintiffs had shown that Defendant had purposefully availed himself of the forum, they have not demonstrated that the controversy is related to, or arises out of, his contacts with California. Here, the controversy is wrongful death.
“A cause of action for wrongful death is ... a statutory claim. (Code Civ. Proc., ;; 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.” (Quiroz v. Seventh Ave. Center
(Lattimore v. Dickey
In opposition, Defendant argues that wrongful death does not apply extraterritorially. Plaintiffs argue that the Court rejected Defendant’s extraterritoriality argument that wrongful death suits do not apply outside of California in ruling on the motion for a protective order. Plaintiffs only cite one case in support -- Cornelison v. Chaney, (1976) 16 Cal.3d 143. In Cornelison, a California resident sued for the wrongful death of her husband, which resulted from an automobile accident that occurred in Nevada. The defendant, a Nebraska trucker, hauled goods to California 20 times each year and was en route to California when the accident occurred. Under the specific facts of Cornelison, including that the deceased was driving back to California and that he frequently travelled between the two states, the Court determined that the tort was directed at California, which justified jurisdiction. (Cornelison 16 Cal.3d at 149; see also Bristol-Myers Squibb Co. v. Superior Court (2016) 1 Cal.5th 783, 825 (J. Wedergar, dissenting) [discussing Cornelison] , rev'd sub nom. Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) 137 S.Ct. 1773.)
Defendant relies upon Beckett v. MasterCraft Boat Co. (2005) 126 Cal.App.4th 1045, for the position that California’s wrongful death statute is not extraterritorial. In Beckett, a young teenager, Stacy Beckett, died of carbon monoxide poisoning while riding in a boat on the Rio Hardy River in Baja California. Ms. Beckett’s parents and brother sued the boat owner and operator and settled for $100,000. They also sued defendant Mastercraft Boat Company. The trial court granted Mastercraft's summary judgment motion and plaintiffs appealed. (Id. at 1047.) The question for the Court of Appeal was whether the High Seas Act preempted California’s wrongful death remedy. (Id.) The Court determined that it did preempt, and held that “Plaintiffs have no California right of action for wrongful death under Code of Civil Procedure section 377.60. The statute ‘does not expressly deal with wrongful deaths occurring outside the State of California. No reported California case has suggested that the territorial reach of the statute extends to deaths on the high seas.’” (Id. at 1050.) Defendant also relies upon unpublished but persuasive federal cases dismissing claims for wrongful death where the death occurred outside of the forum state. (See Silva v. Gonzales (S.D. Cal. May 23, 2014) 2014 WL12663140, at *9, aff'd, 667 F. App'x 967 (9th Cir. 2016); see also Winters v. Jordan (E.D. Cal. 2011) 2011 WL 2470683.)
In addition, Defendant cites a recent decision of the Supreme Court of California, answering a certified question of law posed by the United States Court of Appeals for the Ninth Circuit, where the Court discusses extraterritoriality of statutes. In Ward v. United Airlines, Inc. the Supreme Court explained that there is a presumption against extraterritoriality:
that is, a presumption that state law is intended to apply only within state borders. Of course, legislatures can, and do, regulate beyond their territorial borders in appropriate circumstances. (Skiriotes v. Florida (1941) 313 U.S. 69, 77–79; Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 565–566 (Tidewater); People v. Weeren (1980) 26 Cal.3d 654, 666; cf., e.g., Rest.4th Foreign Relations Law, ; 402 [describing certain recognized bases for the United States to regulate persons and conduct outside its territory].) But courts ordinarily will not give extraterritorial effect to legislative enactments absent an affirmative indication that such was the Legislature’s intent. (See, e.g., Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1207 (Sullivan); North Alaska Salmon Co. v. Pillsbury (1916) 174 Cal. 1, 4; cf. EEOC v. Arabian American Oil Co. (1991) 499 U.S. 244, 248 [describing similar presumption against extraterritoriality governing the acts of Congress].)
(Ward v. United Air Lines, Inc., 9 Cal. 5th 732, 749 [emphasis added].) The Supreme Court also emphasized that "the central insight that has long guided courts seeking to discern the geographic scope of legislative enactments: that the Legislature ordinarily does not intend for its enactments to create conflicts with other sovereigns.” (Id. at 7506.) Likewise, while recognizing this decision is from 1879, a federal court interpreting California’s wrongful death statute found that that the statute authorizing these suits did not apply extraterritorially explaining:
If [the law] operates beyond the territorial jurisdiction of the state, then it becomes a universal law, applicable to all countries, and the legislature of California would be adopting a code of laws affecting the rights of parties arising out of acts done wholly in foreign countries as well as upon the high seas. If California can pass laws of the kind, operating extra-territorially, then other states and countries can pass laws upon the same subject operating upon the high seas, and these laws may be in conflict; but there is nothing in the statute to indicate that it was intended to operate beyond the limits of the state.
(Armstrong v. Beadle (C.C.D. Cal. 1879) 1 F.Cas. 1138, 1138.)
Case law makes clear that there is a strong presumption against California’s statutes being applied extraterritorially. Despite this presumption, California Supreme Court precedent has applied the wrongful death statute extraterritorially. (See Cornelison 16 Cal.3d at 149.) Moreover, while California courts have not always decided that California was the proper forum or a wrongful death action, courts have not held that extraterritorial wrongful death claims were barred outright in California. (See e.g. Kelley v. Von Kuznick (1971) 18 Cal. App. 805, 809-810.) Courts, however, must be extremely judicious in exercising extraterritorial jurisdiction only to those circumstances where the interest of California as a forum are especially compelling or they risk violating a defendant’s due process rights.
In their opposition, Plaintiffs frame the jurisdiction issue as follows: “When a foreign defendant induces a California resident into leaving California on false pretenses and then murders her, may the California resident’s heirs sue the murderer for wrongful death in California?” (Opp., p. 4.) The facts, however, do not support the foundations for the framework of the hypothetical question. Construing the evidence in a light most favorable to Plaintiff, the Court can at best conclude that Defendant convinced Gabriela to travel to South Africa to try a potential Lyme Disease treatment, not for the purpose of murdering her, or for any other improper or tortious purpose. Moreover, there is no evidence before the Court to support Plaintiff’s allegation that Defendant knew the proposed treatment would not work for Lyme Disease. The Court will not consider the South African court’s various statements regarding “false pretenses” not only because the transcript evidence is inadmissible, but also because the statements are unclear as to whether the court is referring to Defendant or owner of the South African treatment facility. As such, there is no admissible evidence before the Court that Gabriela was lured under “false pretenses.”
The second foundation problem for Plaintiffs’ hypothetical is the assertion that Gabriela was “lured” by Defendant from California. In addition to the residency issue (discussed below), many of the conversations between Gabriela and Defendant occurred when Gabriela was in Guatemala – not California – and Defendant was in South Africa. (Weitz Decl., ¶ 19; Kabrins Decl., ¶¶ 22-23.) In addition, Defendant and Gabriela were indisputably in a relationship, and Gabriela traveled there, at least in part, to determine that status of that relationship.
Moreover, at some point in 2014, Gabriela moved to Guatemala and may no longer have been a resident of California. While Ms. Weitz refers to Gabriela as “returning home” or vacationing in Guatemala, the evidence submitted by Plaintiffs strongly supports Defendant’s position that she had moved to Guatemala and lived with Defendant. Gabriela had established a home in Guatemala in 2014, was making arrangements to extend the lease of the Guatemalan home, transported large quantities of personal belongings to Guatemala, and brought her two dogs back to Guatemala before leaving for South Africa. (Azlin Decl., Exhs H (7/1/15 message trying to decide where going to live) and J; Kabrins Decl., ¶ 21.) Gabriela left to South Africa from Guatemala and not California.
Finally, other than communicating with Gabriela while she was in California, Defendant has virtually no contact with California or even the United States. Defendant has not returned to the United States since January 2003. (See 12/17/19 Novella Decl., ¶ 5.) The only contact was owning a condominium, which he has not visited since 2003. Finally, as stated, the conservations between Gabriela and Defendant urging her to come to South African occurred not only while Gabriela was in California, but also while Gabriela was residing/visiting Guatemala.
For these reasons, the Court concludes that Plaintiff has failed to establish, by a preponderance of the evidence, a basis for specific jurisdiction in California. Defendant is a resident/citizen of Guatemala and he is incarcerated in South Africa serving a 20 year sentence for the murder of Gabriela. To expand jurisdiction over a defendant under the circumstances of this case would not comport with fair play and substantial justice and would violate Defendant’s due process rights.
The Court cannot begin to understand the overwhelming grief that Mr. Kabrins and Ms. Weitz must have felt when hearing the news of their daughter’s murder. The horrific circumstances surrounding her killing and desecration would leave the strongest parents heart broken. The tragic circumstances surrounding Gabriela’s murder, and Defendants actions, however, are not properly before this Court.
Defendant’s motion to quash is granted.
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