Grantham v. Nucor

Filed 10/19/06 Grantham v. Nucor CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Dewey Grantham, a resident of Arkansas, sued respondent Nucor Corporation, a Delaware corporation with its principal place of business in North Carolina, (Nucor) for personal injuries that occurred in California but were caused by the alleged negligence of one of Nucor’s subsidiary companies or divisions in Utah. On appeal, Grantham challenges a trial court order granting Nucor’s motion to quash service of summons for lack of personal jurisdiction. We find no error and affirm.

Facts

On August 7, 2003, plaintiff Dewey Grantham, a resident of Arkansas, was employed by PFT Roberson, Inc. (PFT), an Illinois corporation, as a truck driver. That day, PFT sent Grantham to the Nucor Bar Mill also known as Nucor Steel Utah, a steel company in Plymouth, Utah to pick up a load of steel. Pittsburgh-Des Moines Steel, a Pennsylvania corporation that distributes steel products, had purchased the steel “F.O.B. the mill.”[1] Pittsburgh-Des Moines arranged for PFT to transport the steel from Utah to Pittsburgh-Des Moines’s facility in Santa Clara, California.

The load consisted of approximately 22 tons of angle iron: 20-foot lengths of three-inch iron wrapped in 40-piece bundles and 20-foot lengths of one and one half-inch iron wrapped in 165-piece bundles. There were 11 bundles in all.

Grantham alleges that the employees at the Nucor Bar Mill loaded the steel onto his truck in “a negligent manner lacking proper dunnage, bracing and otherwise arranged to pose an unreasonable hazard.” Grantham complained about the way the steel was loaded to the employees in Utah. While Grantham was removing the tarp from the load in Santa Clara, California on August 10, 2003, “the load of steel shifted, causing [Grantham] severe and significant injuries.”

Procedural History

Complaint & Service of Complaint

On June 29, 2005, Grantham filed a complaint for personal injuries against Nucor in Santa Clara County Superior Court. Nucor is a Delaware corporation with its principal place of business in Charlotte, North Carolina. Grantham served Nucor via regular mail with a notice and acknowledgement of receipt. Nucor acknowledged receipt of the summons and complaint.

Motion to Quash

On September 16, 2005, Nucor filed a motion to quash service of summons. In the motion, Nucor asserted that it had no offices, employees, bank accounts or property in California. Nucor argued Grantham could not meet his burden of showing that Nucor had sufficient minimum contacts with the forum to demonstrate either general jurisdiction or specific jurisdiction over Nucor. Nucor contended further that even if Grantham could prove that Nucor had minimum contacts with California, the exercise of jurisdiction was unreasonable since neither party was a California resident, the alleged tortious act (improper loading of the truck) occurred in Utah, all the witnesses and evidence were in Utah, and the case’s only connection to California was that the injury occurred here. Nucor argued that Grantham could protect his interests by suing in Utah, that the most efficient locale for the suit was Utah, and that Utah’s interest in the litigation was greater than California’s.

Opposition to Motion to Quash

Grantham opposed the motion to quash. Grantham’s opposition was based on his own declaration and materials he obtained regarding Nucor and its subsidiary companies from the Internet. Grantham presented evidence from Nucor’s website that Nucor is the largest steel producer in the United States with net sales of $11.3 billion dollars in 2004 and that Nucor is the nation’s largest steel recycler. It recycled 17 million tons of scrap steel nationally in 2004. Grantham argued that the court had general jurisdiction over Nucor since it is generally recognized that California accounts for 10 percent of the national economy and, applying the 10 percent figure to Nucor’s national numbers, Nucor had sales of $1.1 billion in California and recycled 1.7 million tons of scrap steel from California in 2004.

Grantham also argued that California has general jurisdiction over Nucor based on the activities of Nucor’s subsidiaries. He presented evidence that a subsidiary, Nucor Cold Finish Sales Corporation, is registered with the California Secretary of State. Grantham included evidence that Nucor Steel Utah, the corporation that sold and loaded the steel in this case, has identified sales agents for California on the Internet. In his papers, Grantham referred to this company as both a “subsidiary” and a “division” of Nucor. There was evidence that Vulcraft, a division of Nucor located in Brigham City, Utah, has a sales office in Martinez, California.

Grantham’s evidence included an article from the on-line magazine of the Manufacturing Industrial Council of Seattle regarding the history of Nucor Steel Seattle. According to the article, Nucor Steel Seattle sells its products in California, Canada, and the Pacific Northwest and ships steel products from San Francisco to Alaska. Among Grantham’s evidence were pages from the website for Nucor Building Systems, which indicate that Nucor Building Systems, a “division” of Nucor, has a district sales manager in Stockton, California who serves northern California and a district Sales Manager in Clark County, Nevada who serves southern California and other parts of the southwest.

Grantham’s evidence included web pages from electrobase.com that listed Nucor Fastener as a manufacturer in California and from a construction industry website that stated that Nucor Yamato of Arkansas was one of the steel suppliers for the construction of a medical center in southern California.

Based on this evidence, Grantham argued that the court had both general and specific jurisdiction over Nucor. He also argued that it was reasonable for the court to exercise jurisdiction over Nucor because the accident occurred in California, witnesses regarding how the steel was loaded when it arrived were in California, Grantham had already retained a lawyer in California, and he would suffer a severe hardship if he had to locate and retain counsel in Utah. Finally, Grantham asked the court to continue the motion to permit him to conduct discovery on the issue of Nucor’s minimum contacts with the forum.

Reply and Ruling on Motion to Quash

In reply, Nucor argued that Grantham had not met his burden of proving that Nucor has minimum contacts with California. Nucor asserted that the evidence regarding its national sales and recycling activities was not evidence that it had wide-ranging contacts with California. Nucor presented evidence that all but one of the Nucor companies named above was an independent corporation. Nucor explained that Nucor Yamato of Arkansas was a limited partnership, with its principal place of business in Blytheville, Arkansas. All of the corporations were incorporated in Delaware and they all maintained their principal places of business in Delaware, except for Nucor Steel Seattle, whose principal place of business was Seattle, Washington.

Nucor argued that the existence of subsidiary companies that may have minimum contacts with the forum does not establish personal jurisdiction over Nucor, the parent company. Nucor argued that none of the subsidiary companies was a party to the lawsuit and that Grantham had not alleged alter ego or presented any facts that would pierce the corporate veil between the subsidiaries and the parent company. Nucor also argued that it would be unreasonable to maintain the suit in California and that the request for a continuance should be denied because Grantham had had sufficient time since the accident to determine whether Nucor has minimum contacts with California.

The trial court granted the motion to quash. Grantham appeals.

Discussion

I. Motion to Quash

A. Standard of Review

When a nonresident defendant challenges personal jurisdiction, the plaintiff must prove, by a preponderance of the evidence, the factual basis that would justify the exercise of jurisdiction. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons); Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 273 (Pavlovich).) If the plaintiff meets this burden, the burden shifts to the defendant to show that the exercise of jurisdiction would be unreasonable. (Pavlovich, supra, 29 Cal.4th at p. 273.) The merits of the complaint are not implicated in this analysis. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 540 (Sonora Diamond).)

On appeal, the question of jurisdiction is, in essence, one of law. When the facts that give rise to jurisdiction are conflicting, we review the trial court’s factual determinations for substantial evidence. (Sonora Diamond, supra, 83 Cal.App.4th at p. 540.) Even then, we review independently the trial court’s conclusions regarding the legal significance of the facts. (Vons, supra, 14 Cal.4th at p. 449; VirtualMagic Asia, Inc. v. Fil-Cartoons, Inc. (2002) 99 Cal.App.4th 228, 243-244.) When the jurisdictional facts are not in dispute, the issue of whether the defendant is subject to personal jurisdiction is purely a legal question, which we review de novo. (Sonora Diamond, supra, 83 Cal.App.4th at p. 540.)

B. Basic Principles of Jurisdiction

The basic principles courts apply when analyzing personal jurisdiction are well-known. As set forth in Sonora Diamond: “Code of Civil Procedure section 410.10 permits California courts to exercise jurisdiction on any basis not inconsistent with state or federal constitutional principles. The federal constitutional principles governing jurisdiction, represented by the legal shorthand references minimum contacts, Internat. Shoe, and World-Wide Volkswagen familiar to every law student, are simple to state but difficult to apply. The overarching general rule is that a court may assume jurisdiction over a nonresident defendant where the defendant’s ‘minimum contacts’ with the forum state are sufficient to make the maintenance of the action inoffensive to traditional concepts of fair play and substantial justice. (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 320, . . .) Thus, minimum contacts exist where the defendant’s conduct in or connection with the forum state is such that the defendant should reasonably anticipate being subject to suit in the state (World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297, . . .); that is, the defendant’s contacts with the forum state are substantial, continuous and systematic (Vons[, supra,] 14 Cal.4th [at p.] 445, . . .). ‘The sufficiency of such contacts [to support jurisdiction] is a matter of constitutional law on which the Supreme Court of the United States has the final voice. A judgment rendered in the absence of such [contacts] violates the due process clause of the Fourteenth Amendment.’ [Citations.] When the defendant is a foreign corporation, the question whether ‘jurisdiction may be constitutionally exercised depends upon the circumstances of each individual case. . . . [T]he analysis is concerned with weighing the various relevant “contacts” by the foreign corporation within the state attempting to exercise jurisdiction.’ “ (Sonora Diamond, supra, 83 Cal.App.4th at pp. 535-536.)

1. General Jurisdiction

“The concept of minimum contacts embraces two types of jurisdiction--general and specific. General jurisdiction results where the defendant’s contacts with the forum state are so ‘systematic and so continuous as to make it consistent with traditional notions of fair play and substantial justice to subject the defendant to the jurisdiction of the forum, even where the cause of action is unrelated to the contacts.’ “ (Sonora Diamond, supra, 83 Cal.App.4th at p. 536.) “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.] In contrast, contacts that are random, fortuitous, or attenuated do not rise to the minimum level, and general jurisdiction cannot be exercised under these circumstances.” (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795 (Hoffman-La Roche.) “General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are substantial, continuous, and systematic. [Citations.] Factors leading to the conclusion that a defendant’s contacts in the forum are continuous and systematic . . . include maintenance of an office, presence of employees, use of bank accounts, and the marketing or selling of products in the forum state. [Citation.] As the ‘minimum contacts’ test is not susceptible of mechanical application [citation], these listed factors are not exhaustive but they provide guidance as to the type and degree of contacts the defendant must have in order to justify the exercise of general jurisdiction.” (Id. at p. 796.)

On appeal, Grantham argues the court had general jurisdiction over Nucor based on the extent of Nucor’s national economic activity as the largest steel producer in the United States ($11.3 billion in net sales in 2004; operating mills in 15 states other than California). He contends further, “[g]iven California’s role in the national economy, and its undeniable . . . use of automobiles, it is inconceivable that no part of the ‘approximately 17 million tons of scrap steel, with 5 million of those tons being automobiles’ recycled by Nucor in 2004 came from California.”

Evidence of Nucor’s overall, national economic activity was not sufficient to show minimum contacts with California. In the trial court, Grantham provided no evidence supporting his contention that California accounts for 10 percent of the nation’s economic activity. He did not provide any evidence of the extent, if any, that Nucor’s income derives from sales to California or that Nucor acquires scrap metal from California for its recycling operations. The article on Nucor Steel Seattle indicated that Nucor Steel Seattle obtained its scrap steel from the Pacific Northwest, not California. The record is unclear regarding the relationship between Nucor and the Nucor entities. Rather than provide evidence of Nucor’s economic activity in the state, Grantham asked the court to speculate that Nucor must have had sufficient contacts with the state, given the scale of its business on the national level. Nucor submitted evidence that it did not have any offices, employees, property or bank accounts in California. On this record, we cannot say that Grantham has met his burden of proving Nucor had contacts with California activities there were “substantial, continuous, and systematic” to support a finding of general jurisdiction.

Grantham argues “conspicuously absent from [Nucor’s] evidentiary showing . . . was any assertion that Nucor does no business in California, or that this shipment was the only occasion when Nucor steel was sold to someone and delivered to California.” This argument misapprehends the burden of proof on the motion to quash. As plaintiff, Grantham had the burden to prove minimum contacts necessary for the exercise of jurisdiction. (Vons, supra, 14 Cal.4th at p. 449.) Nucor did not have to prove it had no contacts or insufficient contacts with the forum.

2. Specific Jurisdiction

“Specific jurisdiction results when the defendant’s contacts with the forum state, though not enough to subject the defendant to the general jurisdiction of the forum, are sufficient to subject the defendant to suit in the forum on a cause of action related to or arising out of those contacts. [Citations.] Specific jurisdiction exists 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 assertion of jurisdiction would comport with fair play and substantial justice.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 536.)

If we conclude that Grantham has met his burden of establishing that Nucor has minimum contacts with California, we finally must consider whether the assertion of specific jurisdiction is fair. (Vons, supra, 14 Cal.4th at 476.) In making this evaluation, a court must consider: (1) the burden on the defendant; (2) the interests of the forum State; (3) the plaintiff’s interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies. (Ibid., citing Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 113.) If we conclude Nucor had the requisite minimum contacts with California, the burden falls on Nucor to present a “compelling case that the presence of some other considerations would render jurisdiction unreasonable.” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477.)

The court’s order granting the motion to quash does not indicate whether the court found: (1) Grantham had not met his burden of demonstrating general jurisdiction; or (2) Grantham had not met his burden of proving specific jurisdiction; or (3) that while Grantham had met his burden of proving Nucor had the requisite minimum contacts with California, Nucor had met its burden of proving the exercise of jurisdiction would be unreasonable in this case.

Grantham argues “[t]he sheer volume of Nucor’s economic activity is such that it must have purposefully availed itself of the privilege of conducting activities in California.” As with the analysis under general jurisdiction, evidence of Nucor’s national economic activity is insufficient alone to prove minimum contacts with California.

Grantham also contends that Nucor has sales agents in California, solicits sales in California, and shipped steel to California. However, the record is not clear whether Nucor itself, as distinguished from its subsidiaries, had sales agents, solicited sales or shipped goods to California. Grantham relied on evidence regarding seven Nucor-related companies to make his case against Nucor. Nucor submitted evidence that six of the companies were corporations with separate corporate identities from Nucor and that one of the companies was a limited partnership, domiciled in Arkansas. Both Grantham and Nucor refer to these companies as “subsidiaries“ of Nucor. However, there was also evidence that referred to three of the companies, Nucor Steel Utah in Plymouth, Utah (the location where Grantham picked up the steel); Vulcraft of Brigham City, Utah; and Nucor Building Systems, as “divisions” of Nucor. The website pages in evidence indicate that Nucor’s management structure is broken down into “divisions.”

While there was no evidence that Nucor made sales to California, there was evidence that some of the subsidiaries or divisions directed sales at California. Nucor Steel Utah had sales agents that served northern and southern California. The record does not indicate where those sales agents were located. Vulcraft of Brigham, Utah had a sales office in Martinez, California. Nucor Steel Seattle sold steel to California and Nucor Building Systems had a district sales manager in Stockton, California that served northern California and a sales manager in Nevada that served clients in southern California. Nucor Yamato of Arkansas supplied some of the steel for a new medical center in southern California.

To determine whether these contacts between Nucor’s subsidiaries or divisions were sufficient minimum contacts for the purposes of jurisdiction, we shall review the rules applicable to claims of jurisdiction based on the relationship between a parent corporation and its subsidiaries.

C. Jurisdiction Based on Relationship Between Parent Corporation and Its Subsidiary

In analyzing the evidence of contacts, “[w]e start with the firm proposition that neither ownership nor control of a subsidiary corporation by a foreign parent corporation, without more, subjects the parent to the jurisdiction of the state where the subsidiary does business.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 540, italics added.) “ ‘Control’ in this context means the degree of direction and oversight normal and expected from the status of ownership; it comprehends such common characteristics as interlocking directors and officers, consolidated reporting, and shared professional services. [Citations.] The relationship of owner to owned contemplates a close financial connection between parent and subsidiary and a certain degree of direction and management exercised by the former over the latter.” (Id. at pp. 540-541.)

Sonora Diamond discussed the circumstances that subject a parent corporation to jurisdiction based upon the contacts of the subsidiary at length and identified three situations in which jurisdiction may exist over the parent corporation based upon its subsidiaries’ contacts with the forum, including liability based on alter ego, agency or availment theories. (Sonora Diamond, supra, 83 Cal.App.4th 537-555.) There were two defendants in Sonora Diamond: (1) Sonora Mining Corporation, a Nevada corporation that did extensive business in California and did not contest jurisdiction and (2) Sonora Diamond Corporation, a Canadian corporation whose primary business was ownership of Sonora Mining’s stock. (Id. at pp. 530, 532-533.) Sonora Diamond prepared consolidated financial reports for itself and its subsidiaries, including Sonora Mining, guaranteed Sonora Mining’s obligations, and made significant unsecured (and not repaid) loans to Sonora Mining. (Id. at p. 533.) The court analyzed the relationship between the defendants under the three theories set forth above.

General jurisdiction may exist when evidence establishes a subsidiary is the alter ego of the parent company. (Sonora Diamond, supra, 83 Cal.App.4th at p. 538.) The party asserting alter ego liability must establish (1) “such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist” and (2) “an inequitable result if the acts in question are treated as those of the corporation alone.” (Ibid.) Grantham does not argue or present any evidence that the court had jurisdiction over Nucor on an alter ego theory.

The doctrine of agency may support the exercise of jurisdiction when the local subsidiary performs a function that is compatible with, and assists the parent in the pursuit of, the parent’s own business. (Sonora, supra, 83 Cal.App.4th at p. 543.) The nature of the parent’s control over the subsidiary must “be over and above that to be expected as an incident of the parent’s ownership of the subsidiary,” but must “reflect the parent’s purposeful disregard of the subsidiary’s independent corporate existence.” (Id. at p. 542.) “[W]here the nature and extent of the control exercised over the subsidiary by the parent is so pervasive and continual that the subsidiary may be considered nothing more than an agent or instrumentality of the parent, notwithstanding the maintenance of separate corporate formalities, jurisdiction over the parent may be grounded in the acts of the subsidiary/agent. [Citation.] In this instance, the question is . . . whether the degree of control exerted over the subsidiary by the parent is enough to reasonably deem the subsidiary an agent of the parent under traditional agency principles. [Citation.] The jurisdiction acquired by the forum state under this rationale is general.” (Id. at p. 541, fn. omitted.)

“[I]f a parent corporation exercises such a degree of control over its subsidiary corporation that the subsidiary can legitimately be described as only a means through which the parent acts, or nothing more than an incorporated department of the parent, the subsidiary will be deemed to be the agent of the parent in the forum state and jurisdiction will extend to the parent.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 541.) “The parent’s general executive control over the subsidiary is not enough; rather there must be a strong showing beyond simply facts evidencing ‘the broad oversight typically indicated by [the] common ownership and common directorship’ present in a normal parent-subsidiary relationship. [Citations.] As a practical matter, the parent must be shown to have moved beyond the establishment of general policy and direction for the subsidiary and in effect taken over performance of the subsidiary’s day-to-day operations in carrying out that policy.” (Id. at p. 542.)

“The principle of availment arises where it is shown that a specific activity of the parent corporation, while done in the context of the parent-subsidiary relationship, is itself sufficient to justify the exercise of specific jurisdiction over the parent by the forum state. The target activity by the parent corporation must support a finding that the parent has purposefully availed itself of the protection and benefits of the forum state.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 552.) “Because jurisdiction on this ground is specific rather than general, the acts furnishing the basis for jurisdiction must be related to the cause of action for which jurisdiction is sought. [Citations.] The question in this situation is . . . whether the parent for all intents and purposes has done an act in the forum state of a nature as to make reasonable the forum state’s exercise of jurisdiction over the parent with respect to that act and its consequences. Thus, some actions of the parent corporation, even though occurring in the context of the parent-subsidiary relationship, will support jurisdiction over the parent because the acts constitute a purposeful availment by the parent of the benefits and protections of the forum state. [Citation.] The critical acts may be taken directly by the parent or indirectly through the subsidiary, but in all events must be attributable to the parent corporation itself.” (Ibid.)

Grantham sued the parent company Nucor and relied on the activities of several of its subsidiaries or related companies to prove the minimum contacts required for jurisdiction. However, it is not clear from the record whether the various Nucor entities were wholly-owned subsidiaries of the parent corporation or incorporated departments of the parent. As we noted previously, Grantham refers to these entities as both “subsidiaries” and “divisions.” Nucor submitted evidence that each of the Nucor entities Grantham relied on was a separate corporation, except Nucor Yamato, which was a limited partnership. All of the Nucor-related corporations were incorporated in Delaware with their principal places of business in Delaware and Washington. Nucor was incorporated in Delaware, but its principal place of business was in North Carolina.

Grantham, who had the burden to prove minimum contacts, did not provide any evidence relating to the relationship between Nucor and the other entities. He treated Nucor as if it was one company and did not distinguish between the acts of the parent and the acts of the subsidiaries. Grantham provided no information regarding the corporate structures of the Nucor entities, whether they shared officers and directors or whether they maintained separate corporate formalities, consolidated their financial reporting or shared professional services. There was very little evidence of the nature and extent of the control, if any, that Nucor exercised over the subsidiary companies. There was no evidence that Nucor ran the subsidiaries’ day-to-day operations or that it ran the operations of Nucor Steel Utah, the entity that loaded the steel in this case. What little evidence there was, indicated that “[t]he company is highly decentralized, with most day-to-day operating decisions made by the division general managers and their staff.” There was evidence that the Nucor entities maintained separate websites. Grantham submitted evidence from the websites for Nucor, Nucor Steel Utah, Vulcraft in Utah, and Nucor Building Systems.

According to the record, Nucor’s annual report and a list of its divisions was available on Nucor’s website. However, Grantham did not place this information in evidence. He did not conduct any discovery directed at determining the relationship between the subsidiary companies. He did not request documents from Nucor or conduct a single deposition. Grantham’s evidentiary showing here stands in stark contrast to that in Sonora Diamond. (See e.g., Sonora Diamond, supra, 83 Cal.App.4th at pp. 532-534.) In our view, there was a lack of evidence from which the court could conclude that Nucor was liable for the acts of its subsidiaries either on an agency or an availment theory to establish minimum contacts with California.

D. Reasonableness of Exercising Jurisdiction

As stated above, portions of the record referred to some of the Nucor entities as “divisions.” Even if we assume the use of the term “divisions” means that some of the Nucor entities, including the bar mill in Plymouth, Utah, were merely incorporated departments of Nucor and not separate subsidiary companies, we still affirm the order on the motion to quash. Assuming this evidence was sufficient to demonstrate minimum contacts, in our view, the court was correct in concluding that Nucor had met its burden of proving that the exercise of jurisdiction in this case was unreasonable.

Grantham is a resident of Arkansas. The gravamen of his complaint is that Nucor was negligent in the manner in which it loaded the steel onto PFT’s truck in Utah. Nucor submitted a detailed declaration describing the loading process and the number and types of employees who were involved in loading the steel. According to that declaration, there were at least eight Nucor Steel Utah employees involved in the loading process. In opposition to the motion, Grantham states that an unspecified number of unidentified employees of Pittsburgh-Des Moines may have witnessed what occurred when he removed the tarp from the load. The record is silent regarding Grantham’s medical treatment and where the witnesses who provided medical care are located. California’s only connection to the case is that the accident occurred here. The case does not implicate anything related to California’s highway system. Because the evidence regarding the loading process is in Utah and the Nucor Bar Mill is in Utah, it would be more efficient to conduct the litigation in Utah than in California. Grantham argues that he already has counsel in California and that it would be a hardship for him to travel to Utah to locate and retain Utah counsel. We are not persuaded. Grantham’s counsel, who is familiar with Internet research, can assist Grantham in finding qualified counsel in Utah. There was evidence that Nucor has subsidiaries and operations in Arkansas where Grantham lives. Grantham’s counsel can also explore the possibility of filing this lawsuit in Arkansas.

For these reasons, we conclude that Nucor has met its burden of showing the exercise of jurisdiction in California was unreasonable and that the court did not err when it granted Nucor’s motion to quash service of summons.

II. Request for Continuance

In granting the motion to quash, the court impliedly denied Grantham’s request for a continuance to obtain additional discovery. Grantham argues the court abused its discretion when it denied his request for a continuance to conduct discovery regarding Nucor’s contacts with California.

To meet his or her burden of proof on a motion to quash, the plaintiff is entitled to conduct discovery to establish the nature and extent of the defendant’s contacts with California before the hearing on the motion. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) The hearing on the motion to quash may be continued to permit such discovery. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) § 3:380, p. 3-87.) To prevail on a motion for a continuance to conduct jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of facts establishing jurisdiction. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.)

We review a trial court order denying a request for a continuance for an abuse of discretion. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.) The appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)

Grantham filed his complaint approximately 22½ months after the accident occurred. Nucor filed its motion to quash about two and one half months after the complaint was filed and gave Grantham 27 days notice of the hearing date. Grantham did not conduct any discovery related to Nucor’s minimum contacts with California prior to the hearing on the motion. From the record, it appears the only investigation Grantham did from the time of the accident up to the hearing was on the Internet, gathering information regarding Nucor and its subsidiaries. Grantham did not propound a single interrogatory, make any requests for production of documents or admissions, subpoena any records, or notice a single deposition in an effort to discover evidence of Nucor’s contacts with California. Grantham had no discovery outstanding and did not propose a discovery plan when he requested the continuance. He did nothing to establish that conducting discovery would lead to facts establishing jurisdiction. Moreover, Grantham should have known the number and general identity of potential witnesses in California when he responded to the motion. In his opposition to the motion, he suggested only that there were witnesses in California, without indicating the number of witnesses or providing any information regarding the potential witnesses. For these reasons, we conclude the court did not abuse its discretion when it denied the request for a continuance.

Disposition

The order granting Nucor’s motion to quash is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Mihara, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] “F.O.B.” means “free on board” (Cal. U. Com. Code, § 2319, subd. (1)), which means the seller is to put the goods on board at its expense and the goods are at the risk of the buyer once they are on board. (Whitaker v. Dunlop-Morgan Co. (1919) 44 Cal.App. 140, 144.) Consequently, title passed to Pittsburgh-Des Moines after the goods were loaded onto the truck in Plymouth, Utah. (Ibid.)