Alofs vs. Volkswagen A.G.

But at the agreed upon deposition set for July 22--well after the compliance date set in Judge De La Cruz’s order--Plaintiff still did not appear. Counsel explains “[o]ur records reflect that counsel attempted to call Plaintiff [and] left a voicemail . . . .” The attempts to contact Plaintiff at the deposition were mentioned in the nonappearance transcript on Jully 22, where defense counsel noted: “Off the record plaintiff's counsel advised she had attempted to contact plaintiff on at least two different numbers but was unable to reach him.” RT 4:22-25.

Although older persons might have difficulty with Zoom, telephones have been around for 150 years and despite technological changes in dialing numbers, they are simple to operate. That Plaintiff did not call his counsel to report a difficulty connecting to Zoom on July 22 or even answer his counsel’s calls suggests something more sinister is afoot. Indeed, Plaintiff’s counsel declares:

“Despite repeated communications, warnings, scheduling efforts, and the proposed technological assistance, Plaintiff has persistently been unable to appear for and complete his deposition. [¶] “The repeated inability to communicate effectively with Plaintiff, coordinate his participation, and ensure compliance with his discovery obligations has caused an irreparable breakdown in the attorney-client relationship. [¶] Because of that irreparable breakdown in the attorney-client relationship, Plaintiff’s counsel anticipates filing a motion to be relieved as counsel.”

Wong Decl. at ¶¶16, 17, 18. In other words, Plaintiff’s counsel has given up trying to get his client to appear for deposition. The Court also gives up and will not continue the motion for compliance.

Action is DISMISSED with prejudice.

The court also issues additional monetary sanctions against Plaintiff in the sum of $1,500 to be paid within 14 days of written notice of the ruling.

Defendant is ordered to give notice of the ruling and submit a propoed judgment with proof of service within 15 days.. 4 Alofs vs. Defendant Volkswagen A.G.’s (“Defendant”) Motion to Quash Service Volkswagen of Summons (“Motion”) is GRANTED. A.G. Defendant argues it is a foreign corporation with no contacts within California or the United States.

California courts may exercise jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) The statute “manifests an intent to exercise the broadest possible jurisdiction, limited only by constitutional considerations.” [Citation.]” (DVI, Inc. v. Superior Ct. (2002) 104 Cal. App. 4th 1080, 1089 (“DVI”).) “The federal Constitution permits a state to exercise jurisdiction over a

nonresident defendant if the defendant has sufficient “minimum contacts” with the forum such that “maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' [Citations.]” [Citation.] “The 'substantial connection,' [citations] between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. [Citations.]” [Citation.]” (Id., at 1089-90.)

“Personal jurisdiction may be either general or specific. [Citation.] A nonresident defendant is subject to the forum's general jurisdiction where the defendant's contacts are “ 'substantial ... continuous and systematic.' ” [Citations.] In that situation, the cause of action need not be related to the defendant's contacts. [Citations.] “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.” [Citation.]” (DVI, supra, 104 Cal.

App. 4th at 1090.) “If the nonresident defendant does not have substantial and systematic contacts with the forum state, the defendant may be subject to specific jurisdiction if (1) “ 'the defendant has purposefully availed [itself] of forum benefits' ” with respect to the matter in controversy, (2) “ 'the ”controversy is related to or 'arises out of' [the] defendant's contacts with the forum,“ ' ” and (3) the exercise of jurisdiction would comport with fair play and substantial justice.” (Ibid.; Pavlovich v.

Superior Ct. (2002) 29 Cal. 4th 262, 269).)

The court must perform analysis of whether general jurisdiction and/or specific jurisdiction applies, and in the instance of personal jurisdiction, if assertion of personal jurisdiction would comport with the interests of fair play and substantial justice. (L.W. v. Audi AG, 108 Cal. App. 5th 95, 117-18 (“Audi”).) In the present matter, Plaintiff made no arguments regarding general jurisdiction, which leaves only personal jurisdiction and the related issues of fair play and substantial justice in contest.

The Audi case is informative and controlling and involves the same vehicle manufacturing and sales/warranty structure that are present in this case.

“[S]pecific jurisdiction “covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name ‘purposeful availment.’ [Citation.] The defendant ... must take ‘some act by which [it] purposefully avails itself of the privilege of conducting activities within the forum State.’ ” ‘ “ (L.W. v. Audi AG, 108 Cal. App. 5th 95, 107 (“Audi”).) “When determining whether specific jurisdiction exists, courts consider the ‘ “relationship among the defendant, the forum, and the litigation.” ’ [Citation.] A court may exercise specific jurisdiction over a nonresident defendant only if: (1) ‘the defendant has purposefully availed himself or herself of forum benefits’ [citation]; (2) ‘the “controversy is related to or

‘arises out of’ [the] defendant's contacts with the forum” ’ [citation]; and (3) ‘ “the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’ ’ ” ” (Ibid.) “But we must “exercise ‘ “[g]reat care and reserve ... when extending our notions of personal jurisdiction into the international field’ ” ” and “ ‘we apply jurisdictional principles with an abundance of caution where the defendant is a foreign corporation.’ ” [Citation.] In doing so, we are guided by the principal that the doctrine of specific jurisdiction is intended primarily to safeguard the due process rights of the defendant being haled into court and not the interests of the plaintiff in obtaining a convenient forum.” (Ibid.)

“When a corporation ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ [citation], it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence, if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.

The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” (Audi, supra, 108 Cal. App. 5th at 108-09, citing to World- Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286 (World- Wide Volkswagen).)

In Audi, the Court of Appeal held “the record here contains competent evidence establishing the existence of specific jurisdiction over Audi under a stream-of-commerce theory. This is because the record shows that Audi, through its distributor VWGoA, intentionally placed its vehicles into the regular flow of commerce to the United States, including to California. In reaching this conclusion, we are mindful that, as discussed, the United States Supreme Court has not agreed on the precise requirements necessary to establish specific jurisdiction under a stream-of-commerce theory beyond foreseeability that a product may enter the forum state. However, under any of the analyses articulated by the various lead opinions, there is enough in this particular case for Audi to be properly summoned.” (Audi, supra, 108 Cal. App. 5th at 114.)

“Under the circumstances presented, the purposeful availment and relatedness requirements of specific jurisdiction were satisfied. Given the evidence demonstrating that Audi has continuously and deliberately exploited California's automobile market for its economic benefit through VWGoA, Audi must reasonably anticipate being haled into California courts to defend the very type of action this case presents: a products liability action seeking to recover damages for injuries allegedly caused by a defective Audi vehicle in California.” (Audi, supra, 108 Cal. App. 5th at 116.) “To be sure, this

is not a case where Audi is being haled into a California court as the result of “random,” “fortuitous,” or “attenuated” contacts, or of the unilateral activity of a third party. [Citation.] Rather, Audi's conduct and connection with California are such that it had clear notice it would be subject to suit here.” (Id., at 117.)

As the court in Audi found sufficient evidence of purposeful availment and relatedness requirements of specific jurisdiction, this court also finds sufficient evidence of availment supporting personal jurisdiction over Defendant in this matter. This leaves the issue of fair play and substantial justice and relatedness.

While the court in Audi found it fair and reasonable that Audi be haled into court in California for a lawsuit involving design defect which resulted in a child being injured when the car pinned him to a wall, there was no Song-Beverly warranty issues or marketing/sales issues that are present in that case.

In the matter before this court, causes of action one through five are Song-Beverly or related claims based upon warranty issues. Defendant does not issue warranties on vehicles that are sold in the United States, nor does it provide replacement parts or service vehicles sold in the United States. (Piep Decl. ¶¶ 5-6, 13.) Nor does it market, advertise, or sell products within the United States (causes of action numbers six through eight). (Piep Decl. ¶¶ 5-10, 13.) Therefore there is no relationship between Defendant and the issues of this litigation. (Audi 108 Cal. App. 5th at 107.) As the controversy is not related to or does not arise out of Defendant’s contacts with California, the assertion of personal jurisdiction would not comport with fair play and substantial justice.

Under the specific facts of this case, it would not be fair and reasonable to expect Defendant to be haled into California court for the issues alleged. The Motion is GRANTED on this basis.

Although neither party addressed this in their pleadings, even if California were to be able to assert personal jurisdiction over Defendant under the facts of this specific case, the summons itself appears to have not been served on Defendant. The proof of service indicates Defendant was served on ‘CSC Lawyers Incorporating Service - Alex Jenkins - Authorized Agent - Person Authorized to Accept Service of Process’ at 2710 Gateway Oaks Dr Suite 150N, Sacramento, CA 95833 (“CSC”). (ROA 12.) The declaration in support of the Motion indicates Defendant does not have a registered agent or other personnel authorized to accept service of process in California. (Piep Decl. ¶ 12.) Plaintiff has not shown service on CSC was sufficient to effect service on Defendant. The Motion is also GRANTED on this basis.

The court hereby orders service of summons on Defendant quashed.

Defendant to give notice. 5 Au v. Elliot Cont. to 9/26.