Mengmei Xu v. ERY Tenant LLC

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 Honorable Nahal Iravani-Sani, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230

DATE: 07/29/2026 TIME: 9:00 A.M. and 9:01 A.M.

LINE 7 25CV479292 Hiuwai Yip et al MOTION FOR LEAVE TO FILE vs. Xaioxaio Liu et al. Notice is proper. Motion is unopposed. Good cause appearing, Plaintiff’s motion for leave to file First Amended Complaint is GRANTED. Plaintiff to file FAC within 14 days.

LINE 8 26CV486105 Mengmei Xu MOTION TO QUASH vs ERY Tenant LLC Please Ctrl click (or scroll down to) Line 8 9:01 CASE # CASE TITLE RULING LINE 1 21CV392455 Advoque Safeguard APPLICATION TO APPEAR PRO HAC VICE LLC et al vs Benham Pourdeyhimi Application of Stephanie Resnick to appear Pro Hac Vice for et al Defendants Purdeyhimi and Leaders in Innovation and Nonwovens Commercialization, LLC. No objection filed. Good cause appearing, the application is GRANTED.

The Court will sign the e-filed Proposed Order

LINE 2 24CV441893 LVNV Funding LLC Hearing: Claim of Exemption vs. Elsa Alcomendras Vacated

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Calendar Line 8 Case Name: Mengmei Xu v. ERY Tenant LLC Case No.: 26-CV-486105

Motion to Quash Service of Summons and Complaint for Lack of Personal Jurisdiction or, Alternatively, to Dismiss for Forum Non Conveniens by Defendant ERY Tenant LLC

Factual and Procedural Background

This is a fraud action brought by plaintiff Mengmei Xu (“Plaintiff”) against defendant ERY Tenant LLC (“ERY”).1

According to the complaint, in September 2013, Plaintiff, while residing in China, invested $500,000 into defendant ERY’s real estate in New York City. (Complaint at ¶ 6.) Plaintiff was led to believe that the investment had an expected exit timeframe of approximately 3.5 years, which was a material inducement for her decision to invest. (Id. at ¶ 8.)

Plaintiff was also required to execute a Subscription Agreement in connection with the investment. (Complaint at ¶ 9.) The Subscription Agreement referenced a separate Limited Liability Company Agreement (“LLC Agreement”), which purportedly governed material investor rights, including exit rights and distributions. (Id. at ¶ 10.) The LLC Agreement however was not provided to Plaintiff in a manner reasonably sufficient to permit review, understanding, or informed assent, either before or after she invested, nor was it summarized or explained. (Id. at ¶ 11.)

In October 2023, Plaintiff raised concerns regarding the lack of liquidity and requested an exit or refund of the investment. (Complaint at ¶ 16.) In response, defendant ERY stated: (1) whether and when Plaintiff could exit the investment was entirely within ERY’s discretion; and (2) no fixed or expected 3.5 year exit right existed for investors. (Id. at ¶ 17.) This position directly contradicted the representations and understandings made to Plaintiff at the time of the investment. (Id. at ¶ 18.) At this point, Plaintiff realized that ERY had misrepresented and concealed material facts regarding the project’s exit structure and governance. (Id. at ¶ 21.)

On February 4, 2026, Plaintiff filed the operative complaint against defendant ERY alleging causes of action for: (1) fraud/fraudulent inducement; (2) fraud by omission; (3) negligent misrepresentation; (4) declaratory relief; and (5) rescission and restitution.

On March 16, 2026, defendant ERY filed the motion presently before the court, a motion to quash service of summons and complaint for lack of personal jurisdiction. In the alternative, ERY moves to dismiss the action for forum non conveniens. Plaintiff filed written opposition. ERY filed reply papers. Motion to Quash Service of Summons and Complaint

Defendant ERY moves to quash service of summons and complaint for lack of personal jurisdiction as it is not subject to general jurisdiction or specific jurisdiction in the state of California.

1 Plaintiff is also an attorney and representing herself in this action.

Plaintiff’s Burden

“When a defendant challenges jurisdiction through a motion to quash, the plaintiff bears the burden to demonstrate facts, as to each nonresident defendant, justifying the exercise of jurisdiction by a preponderance of evidence. [Citation.] 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, 221-222 (Strasner).)

General Principles of Personal Jurisdiction

“California’s long-arm statute permits a court to exercise personal jurisdiction on any basis consistent with state or federal constitutional principles. [Citations.] The primary focus of the personal jurisdiction inquiry is the relationship of the defendant to the forum state. [Citation.] The ‘constitutional touchstone’ of this inquiry is whether the defendant ‘purposefully established “minimum contacts” in the forum State.’ [Citation.]” (Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 391 (Rivelli).)

“ ‘Minimum contacts exist where the defendant’s conduct in the forum state is such that he should reasonably anticipate being subject to suit there, and it is reasonable and fair to force him to do so.’ [Citations.] To comport with constitutional requirements of due process, a California court may assert jurisdiction over a nonresident defendant (who has not consented to suit in the forum) only if the defendant’s minimum contacts with the forum state are ‘such that the maintenance of the suit “does not offend the traditional notions of fair play and substantial justice.” ’ [Citations.]

The minimum contacts test ensures ‘a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts’ [citation] but only ‘where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum state.’ [Citation.]” (Rivelli, supra, 67 Cal.App.5th at pp. 391-392.)

The court must determine if defendant ERY has sufficient contacts with California to establish general (or “all-purpose”) jurisdiction or specific (or “case-linked”) jurisdiction.

General Jurisdiction

“The standard for general jurisdiction is considerably more stringent than that for specific jurisdiction. [Citation.] A defendant is subject to general jurisdiction when it has substantial, continuous, and systematic contacts in the forum state, i.e., its contacts with the forum are so wide-ranging that they take the place of a physical presence in the state. [Citations] In assessing a defendant’s contacts with the forum for purposes of general jurisdiction, we look at the contacts as they existed from the time the alleged conduct occurred to the time of service of summons. [Citation.]

For a corporation, its domicile, place of incorporation, and principal place of business within a state constitute the paradigm bases for establishing general jurisdiction. [Citation.] A defendant corporation’s substantial sales in a state are insufficient to establish general jurisdiction, as the general jurisdiction analysis turns on the nature of the

defendant’s continuous corporate operations within a state. [Citation.]” (Strasner, supra, 5 Cal.App.5th at pp. 222-223.)

“ ‘To determine if a defendant’s activities qualify as “continuous and systematic” or “substantial” we examine all of the defendant’s activities that impact the state, including whether the defendant makes sales, solicits or engages in business, serves the state’s markets, designates an agent for service of process, holds a license, has employees, or is incorporated there. [Citations.]’ ” (Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1316.)

In opposition, Plaintiff does not set forth arguments demonstrating that general jurisdiction is applicable in this action. Thus, the court examines whether defendant ERY has sufficient contacts with California to establish specific jurisdiction.

Specific Jurisdiction

“Case-linked jurisdiction hinges on the ‘ “relationship among the defendant, the forum, and the litigation.” ’ [Citations.] It requires ‘ “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” ’ [Citation.] Consistent with the constraints of due process, ‘the defendant’s suit-related conduct must create a substantial connection with the forum State.’ [Citation.]” (Rivelli, supra, 67 Cal.App.5th at p. 392.)

“As expressed by the California Supreme Court, a court may exercise case-linked jurisdiction over a nonresident defendant if three requirements are met. First, the defendant must have purposefully availed himself of the privilege of conducting activities in this state, thereby invoking the benefits and protections of California’s law. Second, the claim or controversy must relate to or arise out of the defendant’s forum-related contacts. Third, the exercise of jurisdiction must be fair and reasonable and should not offend notions of fair play and substantial justice. [Citations.]” (Rivelli, supra, 67 Cal.App.5th at p. 392.)

As stated above, “ ‘the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] 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. [Citation.]’ [Citation.]” (Stone v. Tex (1999) 76 Cal.App.4th 1043, 1048.)

“The case-linked jurisdictional analysis is intensely fact-specific. [Citation.] Indeed, the test for personal jurisdiction ‘ “is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” ’ [Citations.]” (Rivelli, supra, 67 Cal.App.5th at pp. 392-393.)

Purposeful Availment

“An out-of-state defendant purposefully avails itself of a forum state’s benefits if the defendant (1) purposefully directs its activities at the forum state’s residents, (2) purposefully derives a benefit from its activities in the forum state, or (3) purposefully invokes the privileges and protections of the forum state’s laws by (a) purposefully engaging in ‘significant activities’ within the forum state or (b) purposefully creating ‘continuing [contractual] obligations’

between itself and the residents of the forum state. [Citations.] Purposeful availment can occur from afar; the out-of-state defendant’s physical presence in the forum state is not required. [Citation.]” (Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243, 253 (Jacqueline B.).)

“As the name and definition of purposeful availment make plain, an out-of-state defendant’s conduct toward the forum State or its residents is relevant to the jurisdictional analysis only if that conduct is purposeful, deliberate, and intentional. [Citations.] An out-of-state defendant’s contact with a forum state that is ‘random’ ‘fortuitous’ or ‘attenuated’ is not enough. [Citations.] This is why the mere fact that the out-of-state defendant’s conduct has some ‘effect’ on a California resident is not enough, by itself, to constitute purposeful availment [citations]; to count, that effect must be intended [citations].” (Jacqueline B., supra, 68 Cal.App.5th at p. 254.)

As a preliminary matter, the complaint alleges the court has personal jurisdiction over defendant ERY as the company purposefully directed investment solicitation and related conduct toward California residents, including Plaintiff, and Plaintiff’s claims arise from that conduct. (Complaint at ¶ 4.) But, as stated above, unverified allegations of the complaint are not enough to overcome a motion to quash as the court must consider admissible evidence submitted by Plaintiff in the opposition. The evidence here consists of Plaintiff’s declaration, signed under penalty of perjury, where she contends she began living in California in 2016 and became a lawful permanent resident of the state in 2019. (Plaintiff’s Decl. at ¶ 7.)

Plaintiff asserts defendant ERY purposefully directed conduct toward California by: (1) in December 2019, issuing an address and banking confirmation form to Plaintiff for future distributions; (2) periodically sending Schedule K-1 and executed capital contribution directly to Plaintiff after she established her permanent residence in California; and (3) responding to a letter sent by Plaintiff on or about October 2, 2023. (Id. at ¶¶ 8-10.)

Thus, Plaintiff argues her communications with defendant ERY after she became a lawful permanent resident in California, are sufficient to satisfy her burden on the element of purposeful availment. While not cited specifically in the opposition, Plaintiff appears to be relying on the so-called “effects test” pursuant to Calder v. Jones (1984) 465 U.S. 783 (Calder).

In Calder, a California plaintiff sued a Florida reporter and editor for libel based on an article the defendants wrote and edited in Florida for publication in the National Enquirer, a national newspaper that included a California circulation of roughly 600,000. (Calder, supra, 571 U.S. at pp. 784-786.) The United States Supreme Court examined the contacts the defendants had created with California by writing the article and found them to be sufficient to constitute minimum contacts. (Ibid.) Specifically, the defendants had relied on phone calls with sources in California for the information in the article, which focused on the plaintiff’s activities in California, and they had caused reputational injury to the plaintiff, the brunt of which was suffered in California. (Ibid.)

Jurisdiction over the defendants in California was proper, the court held, “because of their intentional conduct in Florida calculated to cause injury to [plaintiff] in California.” (Id. at p. 791.)

Although Calder involved a libel claim, courts have applied the effects test to other intentional torts, including business torts. (See IMO Industries, Inc. v. Kiekert AG (3d Cir. 1998) 155 F.3d 254, 259-260 [courts must consider Calder in intentional tort cases]; Far West Capital, Inc. v. Towne (10th Cir. 1995) 46 F.3d 1071, 1077 [“Courts have also applied Calder to business torts”].)

Calder however does not stand for the proposition that any communications with a plaintiff located in the forum state necessarily create sufficient minimum contacts. In fact, the United States Supreme Court has explained that Calder “made clear that mere injury to a forum resident is not a sufficient connection to the forum.” (Walden v. Fiore (2014) 571 U.S. 277, 290.) “Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that defendant has formed a contact with the forum State. The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.” (Ibid.) The “relationship must arise out of the contacts that the ‘defendant himself’ creates with the forum State.” (Id. at p. 284.)

The California Supreme Court has described the Calder “effects test” as “governing whether a defendant in an intentional tort action has purposefully availed himself of the forum benefits.” (Zehia v. Super. Ct. (2020) 45 Cal.App.5th 543, 553, citing Pavlovich v. Super. Ct. (2002) 29 Cal.4th 262, 268 (Pavlovich).) That inquiry focuses on the defendant’s intentionality and is satisfied when the defendant “purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court’s jurisdiction based on his contacts with the forum.” (Pavlovich, supra, at p. 269.)

In summary, “personal jurisdiction may be exercised over a defendant who has caused an effect in the forum state by an act or omission occurring elsewhere. [Citations.] But there must be evidence the nonresident defendant intentionally targeted his or her conduct at the forum state and not just at a plaintiff who lives in that state. [Citations.]” (Swenberg v. dmarcian, Inc. (2021) 68 Cal.App.5th 280, 292; see David L. v. Super. Ct. (2018) 29 Cal.App.5th 359, 374 [“Simply directing conduct at plaintiff knowing that she has significant California connections does not satisfy the minimum contacts inquiry.”].)

Here, according to the evidence submitted in opposition, defendant ERY did not purposefully direct its activities toward California or receive any benefit from California through its correspondence with Plaintiff. Stated another way, there is no evidence that ERY intentionally targeted its conduct in California. Instead, evidence submitted in the moving papers affirmatively shows that ERY does not conduct business, maintain offices, own or lease property, appoint agents for service of process, hold bank accounts, or file taxes in California. (See Rosen Decl. at ¶ 8.)

In fact, the only connection with California was ERY’s correspondence directed solely to Plaintiff which, based on the aforementioned cases, is not enough to satisfy the minimum contacts inquiry. (See also ParaFi Digital Opportunities LP v. Egorov (2025) 108 Cal.App.5th 124, 140 [the use of mails, telephone, or other international communications simply do not qualify as purposeful activity invoking the benefits and protections of the forum state].)

Nor is the court persuaded by the legal authorities cited in opposition in support of the purposeful availment element. Plaintiff relies primarily on the United States Supreme Court decision in Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462 (Burger King) where a

dispute arose out of a franchise agreement between the franchisor Burger King, located in Florida, and the franchisee located in Michigan. Even though the defendant franchisee never physically entered the forum state, the Supreme Court determined that the defendant had purposefully directed its economic activities toward the forum state and created an ongoing contractual relationship between himself and the Florida plaintiff. (Burger King, supra, at p. 476.)

Burger King however is distinguishable as the Supreme Court was addressing personal jurisdiction in the context of interstate contractual relations rather than fraud which is the principal issue in this action. Also, the dispute grew out of a contract that had a “substantial connection” with the forum state. (Burger King, supra, 471 U.S. at p. 475.) For example, the defendant’s activities in Burger King included deliberately reaching out to negotiate the franchise agreement with the Florida franchisor, a continuous course of mail and telephone contacts with Burger King in Florida, paying monthly franchise fees to Burger King in Florida, and allegedly engaging in conduct causing foreseeable injuries to the corporation in Florida.

Furthermore, the Supreme Court found it significant that defendant knew he was forming a business relationship with plaintiff in the forum state and that his operations would be supervised by headquarters in that state. And, by affiliating with Burger King, defendant took advantage of significant benefits that would flow from plaintiff’s established name and organization. By contrast, the evidence submitted in opposition does not establish that defendant ERY had a “substantial connection” with California in this case.

Plaintiff’s reliance on Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054 (Snowney) is also misplaced. There, a California resident brought a class action against a group of Nevada hotels based on the conduct of the hotels in failing to provide notice of an energy surcharge imposed on hotel guests. (Snowney, supra, at pp. 1059-1060.) Although the hotels did not conduct business in California and had no bank accounts or employees in the state, they advertised heavily in California and received a significant portion of their business from California residents. (Id. at p. 1059.)

The California Supreme Court held both that (1) the conduct of the hotels established that the hotels purposefully and voluntarily directed their activities toward California such that they should expect to be subject to California courts’ jurisdiction based on their contacts with the forum, and (2) the injury suffered by the plaintiff “relates directly to the content of defendants’ advertising in California.” (Id. at pp. 1067, 1070.) Unlike Snowney, there is no evidence proffered in opposition demonstrating that defendant ERY advertised heavily in California or received a significant portion of their business from California residents.

Therefore, the court finds that Plaintiff has not carried her burden in establishing that defendant ERY purposefully availed itself of the benefits and protections of California law. Having failed to satisfy this element, the court declines to consider whether the causes of action relate to or arise out of the defendant’s forum-related contacts and whether the exercise of jurisdiction would be fair and reasonable so as not to offend notions of fair play and substantial justice.

Request to Continue the Motion to Quash to Conduct Jurisdictional Discovery

If the court is inclined to grant the motion, Plaintiff requests a continuance of the motion to conduct jurisdictional discovery.

A plaintiff attempting to asset jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof. (Hardell v. Vanzyl (2024) 102 Cal.App.5th 960, 974-975.) The court has “discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues.” (HealthMarkets, Inc. v. Super. Ct. (2009) 171 Cal.App.4th 1160, 1173.) But, “[i]n order to prevail on a motion for continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.” (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.)

In opposition, Plaintiff seeks an opportunity to conduct jurisdictional discovery for the purpose of obtaining the following from defendant ERY: (1) the subscription package; (2) transmission records; (3) electronic version flow logs; (4) communications with Wailian Visa; and (5) internal records concerning Jeff T. Blau’s 2023 response to Plaintiff’s redemption request. (See OPP at p. 16:20-25; Plaintiff’s Decl. at ¶¶ 3, 5, 9.) But, as stated above, Plaintiff fails to submit evidence showing that ERY purposefully availed itself of the benefits and protections of California law.

Plaintiff’s request to conduct jurisdictional discovery fails as it does not address how the requested information and documents will satisfy this element or lead to the production of evidence establishing personal jurisdiction over defendant ERY for purposes of this motion. Accordingly, the request to conduct jurisdictional discovery is DENIED.

Leave to Amend

Finally, if the court is inclined to grant the motion, Plaintiff requests leave to amend the complaint to add allegations of defendant ERY’s contacts with California and post-investment conduct. As a threshold matter, the court is not aware of any legal authority that allows a plaintiff an opportunity for leave to amend in response to a motion to quash. Nor does leave to amend seem proper as the court, at this juncture, is not concerned with whether Plaintiff has stated a valid cause of action but only whether evidentiary facts exist for the exercise of personal jurisdiction over defendant ERY. Plaintiff has not carried her burden in producing such evidence for reasons explained above and offering her an opportunity for leave to amend does nothing to resolve the issue of personal jurisdiction in this action.

Therefore, the request for leave to amend is DENIED.

Consequently, the motion to quash service of summons and complaint for lack of personal jurisdiction is GRANTED. Having granted the motion to quash, the court declines to address the alternative motion to dismiss for forum non conveniens.

Disposition

The motion to quash service of summons and complaint for lack of personal jurisdiction is GRANTED.

The court will prepare the Order.

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