On 06/05/2017 SILVIA GUTIERREZ filed a Personal Injury - Other Personal Injury lawsuit against ADIDAS AMERICA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and AMY D. HOGUE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
AMY D. HOGUE
ADIDAS AMERICA INC.
DOES 1 TO 50
VERTEX GMBH VERTRIEBSGESELLSCHAFT FUR TEXTIL-EINRICHTUNGSBEDARF
ROES 1 THROUGH 50
HERRERA LAW PC
HERRERA JOB LEO
NGUYEN MINH TRI
MCNUTT THOMAS B. ESQ.
MCNUTT THOMAS BENNETT ESQ.
6/26/2019: Minute Order
6/27/2019: Notice of Ruling
7/15/2019: Amendment to Cross-Complaint (Fictitious/Incorrect Name)
5/24/2018: NOTICE OF ASSOCIATION
6/5/2018: CIVIL DEPOSIT
6/5/2018: PLAINTIFF'S NOTICE OF POSTING JURY FEES
5/16/2019: Notice of Ruling
5/16/2019: Ex Parte Application
5/16/2019: Minute Order
10/27/2017: NOTICE OF CHANGE OF LAW FIRM
6/5/2017: Summons (Joint Debtor)
6/5/2017: COMPLAINT FOR DAMAGES FOR: 1) NEGLIGENCE ;ETC
6/28/2017: PROOF OF SERVICE SUMMONS
7/25/2017: DEFENDANT ADIDAS AMERICA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
7/25/2017: CIVIL DEPOSIT
7/26/2017: NOTICE OF POSTING JURY FEES
Hearingat 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE DismissalRead MoreRead Less
Hearingat 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 10:00 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketNotice (NOTICE OF TRIAL); Filed by Adidas America, Inc. (Defendant)Read MoreRead Less
DocketAmendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by Adidas America, Inc. (Cross-Complainant)Read MoreRead Less
DocketNotice of Ruling; Filed by Adidas America, Inc. (Defendant)Read MoreRead Less
DocketCross-Complaint; Filed by Adidas America, Inc. (Cross-Complainant)Read MoreRead Less
DocketSummons (Cross-Complaint); Filed by Adidas America, Inc. (Defendant)Read MoreRead Less
Docketat 1:30 PM in Department 4B, Laura A. Seigle, Presiding; Hearing on Motion for Leave to File a Cross-Complaint - Held - Motion GrantedRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Leave to File a Cross-Complaint)); Filed by ClerkRead MoreRead Less
DocketDEMAND FOR JURY TRIALRead MoreRead Less
DocketReceipt; Filed by Adidas America, Inc. (Defendant)Read MoreRead Less
DocketAnswer; Filed by Adidas America, Inc. (Defendant)Read MoreRead Less
DocketDemand for Jury Trial; Filed by Adidas America, Inc. (Defendant)Read MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketProof-Service/Summons; Filed by Silvia Gutierrez (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketComplaint; Filed by Silvia Gutierrez (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES FOR: 1) NEGLIGENCE ;ETCRead MoreRead Less
DocketSummons (Joint Debtor)Read MoreRead Less
Case Number: BC663748 Hearing Date: February 21, 2020 Dept: 27
[TENTATIVE] ORDER RE: MOTION TO COMPEL COMPLIANCE WITH SUBPOENA; MOTION TO CONTINUE TRIAL
On November 26, 2015, plaintiff Silvia Gutierrez (“Plaintiff”) was allegedly struck by a mannequin in one of Defendant’s stores. Plaintiff alleges serious injuries including traumatic brain injury. Plaintiff filed suit on June 5, 2017.
Motion to Compel Compliance
Exodus Recovery/Lucy Estrada, M.D. (“Deponent”) is one of Plaintiff’s treating medical providers as identified in Plaintiff’s discovery responses. Plaintiff alleges she received psychological treatment as a result of her injuries. Defendant served a subpoena on Deponent but received no responsive documents. Accordingly, Defendant filed this motion to compel compliance with the subpoena. No opposition was filed in opposition.
A “written notice and all moving papers supporting a motion . . . to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, Rule 3.1346.) Defendant did not file a proof of service showing it personally served Deponent with this motion to compel. The Court cannot order a third party to comply with a subpoena where the third party had no notice of the motion to compel, let alone personal serve as required by the Rules of Court. Accordingly, the motion is DENIED.
Motion to Continue Trial
Defendant moves to continue trial from April 16, 2020 for 180 days in order to serve its Cross-Complaint against Vertex Hong Kong Corporation, Ltd. (“VHK”). The Cross-Complaint is currently out for service via the Hague Convention but according to Defendant’s attorney service, it typically takes 6-12 months for service to be effected. Defendant contends that it has valid indemnity claims against VHK due to VHK’s involvement in the chain-of-distribution of the subject mannequin. A continuance will allow VHK to be served, and for fact and expert discovery to take place in order for the parties to mediate.
Trial was initially scheduled for December 5, 2018 and continued to April 23, 2019, then to June 4, 2019 by stipulation of the parties and approval by the Court. A third continuance was granted continuing the trial to November 13, 2019 to allow for Defendant to file a Cross-Complaint and serve a Vertex, and because Plaintiff was continuing to treat for her injuries. Plaintiff had also made a new ophthalmologic claim requiring additional discovery. A fourth continuance was granted so that Vertex could be served and additional discovery could be completed regarding Plaintiff’s traumatic brain injury.
A party seeking a continuance of the date set for trial must make the request for a continuance by a noticed motion or an ex parte application as soon as reasonably practical once the necessity for the continuance is discovered. (Cal. Rules of Court, Rule 3.1332(b).) The request for continuance may be granted on an affirmative showing of good cause. (Cal. Rules of Court, Rule 3.1332.)
Plaintiff does not oppose the motion. Good cause exists to grant the request for trial continuance. The motion is GRANTED.
Pursuant to the request of moving party, the Final Status Conference scheduled for is continued to October 2, 2020 at 10:00 AM in Department 27 at Spring Street Courthouse. The trial is continued to October 16, 2020 at 08:30 AM in Department 27 at Spring Street Courthouse. All discovery and motion cut-off dates based on new trial date. The parties are to inform all witnesses and experts about the new trial date. The parties should expect no further continuances.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.
Case Number: BC663748 Hearing Date: December 30, 2019 Dept: 4B
[TENTATIVE] ORDER RE: MOTION TO QUASH SERVICE OF SUMMONS BASED UPON LACK OF PERSONAL JURISDICTION
On June 5, 2017, plaintiff Silvia Gutierrez filed this action against defendant Adidas America, Inc. (“Defendant”) for negligence and premises liability arising from an incident where a mannequin fell on her while in one of Defendant’s stores. Defendant subsequently filed a cross-complaint against VerTex GmbH Vertriebsgesellschaft für Textil-Einrichtungsbedarf (“VerTex”) for indemnity because VerTex allegedly manufactured the mannequin. VerTex seeks to quash service of summons on the grounds that this Court lacks personal jurisdiction.
A. Legal Standards for Motion to Quash for Lack of Personal Jurisdiction
“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)
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 and motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581, subd. (h).)
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. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)
B. General Jurisdiction
“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.’ [Citations.] In such a case, ‘it is not necessary that the specific cause of action alleged be connected with the defendant’s business relation to the forum.’ [Citation.] 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.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) The inquiry “is not whether a foreign corporation’s in-forum contacts can be said to be in some sense ‘continuance and systematic,’ it is whether that corporation’s ‘affiliations with the State are so “continuous and systematic” as to render [it] essentially at home in the forum State.’ [Citation.]” (Daimler AG v. Bauman (2014) 571 U.S. 117, 138-139.)
VerTex contends it has no office, owns no property, and has no financial accounts in California. VerTex does not advertise or market its products in California. It has no subsidiary, related entity, or distributor in California. It sold products to Adidas in the United States on only two or three occasions and never to the address of the outlet store where the incident occurred.
Defendant contends VerTex has an office in Los Angeles according to VerTex’s LinkedIn page, sold products to Defendant at least 2 or 3 times, advertises in English on its website, and uses Facebook and LinkedIn to advertise. VerTex insists it does not have a Los Angeles office and asserts with no evidence that the address is to an apartment complex.
Except for the claimed Los Angeles office, these “contacts” are insufficient to establish substantial, continuous, and systematic contact such that VerTex is essentially at home in California. VerTex does not own property, design or manufacture, advertise or solicit business, or have property or assets in California. However, if VerTex does have an office in Los Angeles, then there is general jurisdiction. The printout from the LinkedIn page lists a Los Angeles address as one of three “Locations.” It is not clear what that means or who created and controls the content of the LinkedIn page.
C. Specific Jurisdiction
A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons, supra, 14 Cal.4th at p. 446.) In addition, the assertion of personal jurisdiction must “ ‘comport with “fair play and substantial justice.” ’ [Citations.]” (Id. at pp. 447-448.)
The purposeful availment requirement analyzes whether the nonresident defendant “purposefully directed” its activities at forum residents, “purposefully derived benefit” from forum activities, or “purposefully avail[ed itself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” (Burger King Corp., supra, 471 U.S. at pp. 472-473.) A nonresident who “‘deliberately has engaged in significant activities with a State’ [citation] or has ‘continuing obligations’ between himself and residents of the forum [citation]” has “‘manifestly . . . availed himself of the privilege of conducting business [in the forum], and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” (Vons, supra, 14 Cal.4th at p. 446.) “This ‘purposeful availment’ requirement ensures that a defendant will not be hailed into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” (Id. at p. 474.)
“The relevant time period for measuring the nature and quality of a nonresident defendant’s contacts with the forum for purposes of specific jurisdiction is at the time the plaintiff’s cause of action arose.” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 226.)
VerTex argues it has not directed activities at California and only sold a few products to Adidas in the United States. It sells to Adidas in Germany. It does not know how the Adidas outlet store obtained its product. Defendant argues VerTex should have foreseen that the sale of its products to Adidas in Germany would result in one of its products ending up in a store in California.
Putting a product into the stream of commerce also does not alone establish purposeful availment. (J. McIntyre Machinery, Ltd. V. Micastro (2011) 564 U.S. 873, 886-887.) In J. McIntyre, the Supreme Court held an intent to serve the U.S. market and to distribute products in the United States did not show the foreign manufacturer purposefully availed itself of a particular state’s market, where the foreign manufacturer did not visit that state and four of its products ended up in that state. (Id. at p. 886.) “The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” (Id. at p. 882.) “Additional conduct of the defendant may indicate an intent to serve the market in the forum State” such as “designing the product 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.” (Asahi, supra, 480 U.S. at p. 112; see also Jayone Foods, supra, 31 Cal.App.5th at p. 559 [“merely placing a product into the stream of commerce, even with knowledge that the product might enter the forum state, is not a sufficient basis for personal jurisdiction over a nonresident defendant”].)
Several cases are instructive on the requisite quality of contacts and relatedness required to exercise specific jurisdiction over a foreign corporation for an alleged defective product. In Carretti v. Italpast (2002) 101 Cal.App.4th 1236, a restaurant worker lost his right arm when trying to unclog a pasta making machine at a restaurant in California. He sued the Italian manufacturer and the California distributor who sold the machine to the restaurant. (Id. at p. 1240.) The distributor filed a cross-complaint for indemnity against the manufacturer. (Ibid.) The Italian corporation filed a motion to quash service of summons for lack of personal jurisdiction. (Ibid.) The manufacturer did not market or advertise in the United States but would send product information to the United States upon request. (Ibid.) It had no offices or employees in the United States, had no contract with the distributor or any other distributor to distribute its products in the United States, and never sold its goods directly to California users. (Ibid.) The distributor was the only buyer from California who purchased its products. (Ibid.) Finding insufficient contacts, the court stated: “We simply cannot say that random sales in Italy to a distributor who happens to have an office in California but may resell its products anywhere is tantamount to an effort to serve the market in the state . . . It has not cultivated the California sales market by repeatedly sending merchandise to various California distributors. There is no evidence that at the time of sale [the manufacturer] knew its machines were being delivered to California, except on one occasion, and even then, it did not know if California was the ultimate destination, or just a port of entry.” (Id. at p. 1253.)
In Luberski, Inc. v. Oleificio F.LLI Amato S.R.L. (2009) 171 Cal.App.4th 409, an Italian company entered into a direct sales contract with a California business. Although it had sold its product to only a small number of California customers and had no employees, assets, bank accounts, or offices in California, the court found the company was subject to specific jurisdiction where the contract negotiations were conducted with the implicit understanding that the goods were only useful if they were delivered to California, the defendant company maintained responsibility for the goods until they arrived in California, and the company had the expectation that the goods would be used in California. (Id. at p. 419.)
Finally, in a wrongful death suit, plaintiffs sued a California importer and distributor of Korean consumer products that sold a defective humidifier cleaning agent to a Los Angeles retail store where it was purchased by the decedent. (Jayone Foods, supra, 31 Cal.App.5th at p. 548.) The distributor filed a cross-complaint for equitable indemnity, contribution, and declaratory relief against the Korean manufacturer and distributor who sold the cleaning agent to the California importer. (Ibid.) The court held that the Korean manufacturer had purposefully availed itself of the benefits of doing business in California by engaging in a number of direct sales transactions with multiple California distributors between 2005 and 2012; having an ongoing business relationship with the California distributor between 2006 and 2010, during which time, thousands of products were sold, including 3,600 bottles of the subject humidifier cleaning agent; shipping all products sold in California through Los Angeles or Long Beach ports; and having knowledge that the final destination for the products was Los Angeles. (Id. at p. 556-557.) Further, the Korean manufacturer sold products to five other distributors located in California, which generated $1.78 million in revenue, even if it was unaware of the intended final destination. (Id. at p. 557.) Therefore, the manufacturer “did not merely place its products into the stream of commerce with an awareness they might end up in California. Rather, [it] purposefully directed its activities toward California businesses when it repeatedly sold its products to various California distributors over a seven-year period . . . derived benefits from its activities in California when it generated almost $2 million in revenue from these California sales . . . [and] purposefully availed itself of the benefits of doing business in California and reasonably could expect to be subject to the jurisdiction of California courts.” (Id. at p. 559.)
Defendant requests limited discovery to demonstrate that VerTex has sufficient contacts with California to establish either general or specific jurisdiction, such as entering into contracts with California-based companies and vendors and placing VerTex products into the stream of commerce for sale or shipment to California. “The plaintiff has the right to conduct discovery with regard to the issue of jurisdiction to develop the facts necessary to sustain this burden.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) VerTex does not expressly oppose the request for limited discovery into the issue of personal jurisdiction. Accordingly, the hearing is CONTINUED to March 30, 2020 to allow for discovery on the issue of personal jurisdiction over VerTex.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.