Filed 4/14/22 Evertz Technologies v. Cooper CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Evertz Technologies Ltd. and Evertz Microsystems, Ltd. appeals an order quashing service of summons in its suit against Nevada resident James Carl Cooper. The trial court granted Cooper’s motion to quash for lack of personal jurisdiction finding that Cooper was not subject to suit in California for the claims alleged against him. On appeal Evertz contends that there was sufficient evidence to support a finding of either general or specific personal jurisdiction. Additionally, Evertz argues that the court should have compelled Cooper to provide further discovery before ruling on his motion to quash. For the reasons discussed below, we affirm.

I. Factual and Procedural Background^[1]

Evertz is a Canadian corporation that designs, manufactures, and markets video and audio infrastructure platforms for the television, telecommunications and new-media industries.

Cooper designs software for use in products and components that transmit audio and video signals and has obtained numerous patents for his software technology. Over the years, Cooper set up several companies to develop, license and market his software to third parties, some of which were created and/or operated in California. Cooper incorporated Pixel Instruments, Corp. (Pixel), in Delaware in 1983 and operated it as president out of his home when he lived in California. Technology Licensing Company (TLC) and Watonga Technology, Inc. (Watonga), both incorporated in California, later merged into Nevada companies and moved their operations to Nevada.

Other entities Cooper created had no connection to California. Cascades AV LLC (Cascades), incorporated in Colorado, was headquartered in Illinois. New Medium LLC (New Medium) was incorporated and headquartered in Illinois. IP Innovation LLC (Innovation), incorporated in Texas, was also headquartered in Illinois.^[2]

In 2001, Cooper accused Evertz of violating several of the patents held by his companies and threatened to sue for patent infringement. The parties resolved this dispute in 2007, by negotiating two licensing agreements that allowed Evertz to use technology, and any related applications for the technology, protected by 11 patents held by TLC, Innovation, and New Medium (Licensing Agreements).

As part of the licensing transaction, Cooper executed two mutual release agreements, whereby he agreed not to sue Evertz for “any and all claims that he could have brought in any proceeding against Evertz for infringement of any existing patent presently or formerly owned or controlled by him or any company owned or controlled by him or that might revert to him ([a] ‘Cooper Patent’), with respect to any past, present or future products, methods, services, or systems of Evertz that previously, currently, or in the future are made, used, sold, offered for sale, imported or exported by Evertz.” Cooper also agreed that “neither he nor any company owned or controlled by him [would] bring suit, initiate any proceeding or otherwise assert any claim, assist voluntarily in the prosecution of any claim, or receive or direct to any third party any payments arising from the prosecution or settlement of any claim, apart from payments rising from the Licensing Agreements, against Evertz or its affiliates . . . based upon or arising out of any Cooper Patent.”

In 2010, 2013 and 2014, Cooper again accused Evertz of patent infringement, this time for lip sync correction technology he had patented in 2009 to which Crystal, Watonga and Cascades held the licensing rights. Evertz maintained that it had acquired the right to use this technology pursuant to the Licensing Agreements. Cooper rejected this claim.

In November 2017, Cascades sued Evertz in the federal district court in Illinois for infringement of the three 2009 patents it held. The following month, Evertz filed the instant action in California against Cooper. The complaint filed in the California state court alleges that TLC, Watonga and Crystal are shell companies owned by Cooper and that the infringement claims from 2010 to 2014 violate the terms of the Licensing Agreements and the Mutual Releases. The complaint states causes of action for breach of contract, fraud, unfair competition and conspiracy and requests declaratory and compensatory relief against Cooper.

Specially appearing, Cooper filed a motion to quash service of the summons for lack of personal jurisdiction.^[3] In the motion, he argued that the action had no connection to California. He alleged that he had not been domiciled here since 2003, that Evertz was based in Canada, that the parties signed the Licensing Agreements and Mutual Releases in Illinois and had agreed that Illinois law would govern those agreements. Finally, he asserted that the evidence relevant to Evertz’s claims was located outside California.

Cooper admitted that he owned a home in Monte Sereno, but stated it was being remodeled and at that point was uninhabitable. He also acknowledged that he traveled to California occasionally to review the remodeling work, to visit his son and to testify in depositions in unrelated patent infringement cases, but that his visits were “infrequent, irregular and very short,” involving at most one overnight at a time. Finally, he alleged that he had not traveled to California to conduct the business of Crystal, Watonga or Cascades, particularly as it related to the issues raised by this litigation.

Although Cooper was required to file a California tax return in 2010 in connection with the sale of an investment property he owned here, he otherwise filed his federal tax returns listing his Nevada address and had been registered to vote and licensed to drive in Nevada since moving there in 2003. Cooper acknowledged that he held minority ownership interests in Crystal and Watonga, but maintained that he did not manage those companies, and he had no ownership interest in or control over Cascades.

In opposition, Evertz argued that Cooper was still domiciled in California. Evertz further argued that Cooper had sufficient purposeful contacts with California to warrant the exercise of either general or specific personal jurisdiction. It presented evidence of Cooper’s activities in California from 1988 to 2003 relating to the formation, de facto control over and active involvement in companies that hold the licenses to his patents; his successful application for numerous patents from 1984 to 2000 while living in California; his involvement in the licensing activities of TLC and Watonga, both originally incorporated here but later merged into Nevada companies; his retention of and work with California-based law firms on patent-related matters both during the 2001 and 2007 dispute that led to the execution of the Licensing Agreements and Mutual Releases and during the 2010, 2013 and 2014 interactions underlying the instant action; his involvement in five lawsuits in California arising out of the efforts to license his patents; and his $2M loan to, and de facto control over Pixel.

Evertz cited additional non-work related contacts Cooper had with California, including: his domicile here from the 1980s until 2003; his oversight of and involvement in the remodeling of the custom Monte Sereno home, and his obvious plans to return there to live; his prosecution of actions in California against the homeowners association for his Monte Sereno home and against a furniture store; and his ownership of a second home in Sunnyvale until 2009. To the extent there was any doubt about the jurisdictional issues, Evertz argued that the court should defer its decision until after the resolution of its then-pending order to show cause on challenges to the sufficiency of Cooper’s discovery responses.

After a hearing, the trial court granted Cooper’s motion to quash. It found the evidence insufficient to establish that Cooper was domiciled in California after 2003. The court further concluded that the evidence did not support a finding of specific personal jurisdiction, reasoning that the alleged activities on which Evertz based its claims were not directed toward California. The court ruled, “As such, the contacts between Cooper and California during the relevant time periods do not demonstrate [that] he purposefully availed himself of the forum’s benefits with respect to the matters in controversy. Having failed to establish that any of these contacts even related to the issues raised in this litigation, [Evertz] also cannot demonstrate [its] claims arose from such contacts. Because the first two prongs of the [jurisdictional] inquiry have not been met, [Evertz has] not established [that] specific jurisdiction exists and [thus] the Court need not analyze whether jurisdiction over Cooper would be reasonable.”

The court specifically found that Cooper’s only contacts with California during the time period in question were his $2M investment in, and retention of a minority ownership in Pixel, his work with California-based attorneys in litigating his patent licensing efforts and his role as a plaintiff in a lawsuit filed by TLC from 2006 to 2011. However, the court concluded that there was no evidence that Cooper was employed by Pixel or conducted any activities on its behalf, or that Pixel was involved in the disputes between Cooper and Evertz. The court similarly concluded that no California-based attorneys were involved in the negotiation or execution of the Mutual Releases, and that there was no connection between TLC’s California lawsuit and the dispute between Evertz and Cooper.

Finally, the court rejected Evertz’s request to continue the motion to allow further discovery.^[4] It reasoned that because the events at issue had no connection with California, additional discovery would not provide evidence to establish that the exercise of personal jurisdiction over Cooper was proper. Evertz filed a timely notice of appeal from the order granting the motion to quash.

2. Discussion

1. Burden of Proof and The Standard of Review

When a nonresident defendant challenges the exercise of personal jurisdiction, the plaintiff has the burden to demonstrate facts established by competent evidence justifying the exercise of jurisdiction. (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney); Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1259.) If the plaintiff makes this showing, the burden shifts to the defendant to show that the court’s exercise of personal jurisdiction over him would be unfair or unreasonable. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472 (Burger King); Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 447–448 (Vons).)

“On appeal, we independently review the trial court’s legal conclusions as to whether a defendant’s contacts with California justify requiring that defendant to mount a defense in the forum. If the facts giving rise to jurisdiction are conflicting, we will not disturb the trial court’ s express or implied factual determinations where supported by substantial evidence. ‘When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record.’ [Citation.]” (Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 393–394 (Rivelli).) The parties agree that the evidence here was not disputed.

2. General Principles Governing the Exercise of Personal Jurisdiction

California’s long-arm statute authorizes the courts of this state to exercise jurisdiction over a person on any basis not inconsistent with the Constitution of the United States or the Constitution of California. (Code Civ. Proc., § 410.10; Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich); Vons, supra, 14 Cal.4th at p. 444.) The primary focus of the personal jurisdiction inquiry is the relationship of the defendant to the forum state. (Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) 582 U.S. ___, 137 S.Ct. 1773, (Bristol-Myers).) A California court may only assert jurisdiction over a nonresident defendant who has “minimum contacts” with the forum state such that the maintenance of the suit “ ‘does not offend the traditional notions of fair play and substantial justice.’ ” (Rivelli, supra, 67 Cal.App.5th at p. 391, citing F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795 (Hoffman-La Roche).)

Evertz contends that Cooper’s relationship with California is sufficient to warrant the exercise of personal jurisdiction because he “purposefully established ‘minimum contacts’ in [California].” (Burger King, supra, 471 U.S. at p. 474.) “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.” (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 795, citing World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297 (World-Wide).) Minimum contacts are not “ ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, but instead must be contacts that create a ‘substantial connection’ ” with the forum state and proximately result from actions by the defendant himself. (Burger King, at p. 475.)

Personal jurisdiction under the minimum contacts framework may be either all-purpose, known as “general” or case-related, known as “specific.” (Rivelli, supra, 67 Cal.App.5th at p. 392.) The nature and the quality of the defendant’s contacts determine whether jurisdiction, if exercised, is general or specific. (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 796.) Where “a nonresident defendant’s activities may be described as ‘extensive or wide-ranging’ [citation], or ‘substantial . . . continuous and systematic’ [citation], there is a constitutionally sufficient relationship to warrant jurisdiction for all causes of action asserted against him.” (Cornelison v. Chaney (1976) 16 Cal.3d 143, 147.) Where a relationship to the state is not substantial, continuous or systematic, California courts may still assert jurisdiction if the causes of action alleged arise out of the defendant’s conduct in the state. (Ibid.) Evertz contends that Cooper’s contacts with California are sufficient to find either general or specific jurisdiction.

3. The Exercise of General Personal Jurisdiction is not Appropriate in this Case

1. Cooper’s Personal Conduct

General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are substantial, continuous, and systematic. (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 796.) Continuous and systematic contacts include such activities as maintaining an office and employees in the forum, use of forum bank accounts, and the marketing or selling of products in the forum state. (Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1259.) “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.” (Hoffman-La Roche, at p. 796.) Evertz contends that the exercise of general personal jurisdiction over Cooper is proper in California because he is domiciled here and has had continuous and systematic contacts with the state, both personally and through the companies that hold his patents.

Cooper’s relationship with California is complicated. It is undisputed that he previously resided in California and started several business ventures in this state. However, it is also undisputed that in 2003, he moved from California to Nevada, where he currently lives, maintains his mailing address and driver’s license, is registered to vote and lists as his address on his federal tax returns.

For the purposes of the general jurisdiction inquiry, it is not whether the defendant has ever been a resident of California but whether he was domiciled in the jurisdiction on the date the action was filed. (In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1425–1426.) This suit was filed on December 4, 2017, years after Cooper left California. Evertz asserts, however, that Cooper should nonetheless be deemed to be domiciled in California because he “always intended to return to his California home” after moving to Nevada. Evertz contends that Cooper’s conduct in California supports this conclusion. Such behavior includes the remodel of his home in Monte Sereno and storage of various household items there, visits by Cooper’s wife and children to the home, and Cooper’s maintenance of two cars in California registered to Pixel. Even if this evidence supports a conclusion that Cooper intends to return to California at some point in the future, a defendant’s future intentions regarding domicile do not control the jurisdictional inquiry.

Cooper’s home, cars and occasional visits to California show only that he has a residence here. A “residence” is the place where a person lives, even temporarily, with or without the intent to remain there. By contrast, a “domicile” is the place where the person resides and intends to remain indefinitely. (DeYoung v. DeYoung (1946) 27 Cal.2d 521, 524 (DeYoung).) Although a person may have several residences simultaneously, he can only have one domicile at a time. (In re Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1258–1259; DeYoung, at p. 524.) The evidence is clear that Cooper has been domiciled in Nevada during the times relevant to the instant dispute.

Nor is there evidence that Cooper’s activities in California are substantial, continuous, or systematic. His visits to California have been sporadic; he neither employs nor is employed in California. He does not maintain an office in California. His use of California lawyers and participation in litigation in California is insufficiently regular to be considered substantial, continuous and systematic. Although this inquiry is not a mechanical one, none of the evidence presented by Evertz, even when taken together, supports a different conclusion. (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 796.)

2. Corporate Conduct

For the first time on appeal Evertz argues that Cooper’s de facto control of Pixel, TLC and Watonga supports the assertion of general personal jurisdiction over him based on the application of alter ego principles. (See generally Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.) Evertz argues that even if Cooper’s personal activities are insufficient to find general personal jurisdiction, Cooper’s activities on behalf of or in lieu of these entities are sufficient to find general personal jurisdiction. Evertz did not raise this issue below.

Even if an alter ego theory were not waived and had been sufficiently raised below (e.g., Ochoa v. Pacific Gas & Electric (1998) 61 Cal.App.4th 1480, 1488, fn. 3), it would not provide a basis for exercising general personal jurisdiction over Cooper. The evidence does not support a conclusion that those corporations are either domiciled in California or have substantial minimum contacts with this state. None of the business entities involved in this litigation were either incorporated or headquartered in California in 2017. As with an individual, general personal jurisdiction over a corporate entity is limited in scope, being appropriate only where the entity “ ‘is fairly regarded as at home.’ ” (Bristol-Myers, supra, 582 U.S. ___, 137 S.Ct. at p. 1780.) Absent exceptional circumstances, such jurisdiction is properly exercised only in the state(s) where the entity is incorporated or has its principal place of business. (Daimler AG v. Bauman (2014) 571 U.S. 117, 137; Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 924.)

In this case, the evidence is undisputed that TLC and Watonga were not incorporated or headquartered in California at the time Evertz filed this action; Pixel was also incorporated elsewhere and nothing in the record establishes that it was headquartered here in 2017. (See generally Serafini v. Superior Court (1998) 68 Cal.App.4th 70, 79–80 [recognizing that a corporation’s relocation of its place of incorporation or its headquarters will divest the courts of its original home state of general personal jurisdiction over it].) Evertz has not established that any of these entities was domiciled in California or had sufficient substantial, continuous and systematic conduct in California in December 2017 to warrant the exercise of general personal jurisdiction.

4. The Exercise of Specific Personal Jurisdiction is not Appropriate in this Case

To determine whether specific jurisdiction exists, we must consider the relationship between the defendant, California, and the underlying litigation. (Pavlovich, supra, 29 Cal.4th at p. 269.) A nonresident defendant who is not subject to general jurisdiction in California may be subject to specific personal jurisdiction if (1) he has, through his contacts with the state, purposefully availed himself of the benefits of conducting activities in, and the protections of the laws of, that state; (2) the claims against him arise out of, or are related to, those contacts; and (3) the court’s exercise of jurisdiction over him is fair and reasonable. (Burger King, supra, 471 U.S. at pp. 472, 475–478.) Given the pervasiveness and ease of interstate travel and commerce in the modern era, the exercise of specific personal jurisdiction under these circumstances both satisfies the legitimate state interest of providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors and prevents an out-of-state actor who purposefully derived benefit from their activities in the state from escaping the consequences of those activities. (Id. at pp. 473–474.)

On appeal, Evertz contends that we should find specific jurisdiction because (1) Cooper has extensive and longstanding business practices in California; (2) there is a relationship between these business practices and the instant matter; and (3) that doing so is reasonable. While we find that Cooper did purposefully avail himself of the benefits of the California legal system, we find his conduct in this state unrelated to the instant matter, and therefore conclude that there is no basis to assert specific jurisdiction over Cooper.

1. Purposeful Availment

Whether a defendant has purposefully availed himself of the benefits of conducting business in the forum state depends on his intentionality, that is, on whether he deliberately and voluntarily directed his activities toward the forum state. (Pavlovich, supra, 29 Cal.4th at p. 269.) Limiting jurisdiction in this manner ensures that a defendant will not be haled into California solely as a result of random, fortuitous, or attenuated contacts with this state, or because of the unilateral activity of some other person. (Burger King, supra, 471 U.S. at p. 475; Snowney, supra, 35 Cal.4th at pp. 1062–1063.) Thus, if a defendant purposefully avails himself of the privilege of conducting activities within California, he has clear notice that he is subject to suit here, 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.” (World-Wide, supra, 444 U.S. at p. 297.)

Evertz contends that Cooper purposefully availed himself of this forum in three distinct ways. First, he regularly participated in litigation in this forum, second that Cooper employed a patent firm in this state and third, the various entities with which he is associated conducted business in California and that those activities should be imputed to Cooper for jurisdictional purposes.

1. Cooper’s Prior litigation in California

Cooper is no stranger to the California courts and legal system. It is undisputed that Cooper has both been sued in California and has availed himself of the California court system to pursue various personal and professional claims. The question we must answer here is whether prior or contemporaneous involvement in litigation is sufficient to show purposeful availment of a forum. In other words, does voluntarily initiating and engaging in litigation in a forum, show sufficient contacts with the forum to put a defendant on notice that he too may be subject to suit here? We conclude that the litigation here did not provide sufficient notice of the possibility of future lawsuits in California.

Cooper has been personally named as a defendant in California patent-related litigation. Being named as a defendant, however, cannot be a basis for a finding that Cooper purposefully availed himself of the forum, since being sued is, by definition, an action taken by another person over which a defendant has no control. (Burger King, supra, 471 U.S. at p. 475, Halyard Health, Inc. v. Kimberly-Clark Corp. (2019) 43 Cal.App.5th 1062, 1072.) It is unclear from the record whether personal jurisdiction was an issue in that matter, but, responding to, and participating in litigation as a defendant does not demonstrate purposeful availment.

Cooper, however, has not only been a defendant in California actions, but has also actively prosecuted actions here. We agree that electing to litigate in California could be akin to doing business in the state because by pursuing legal remedies in the judicial system one avails oneself of the benefits and protections of the laws of this state. But the mere filing of a lawsuit is not enough to demonstrate purposeful availment of the forum. A plaintiff may not have a choice but to come to this forum because the defendant against whom he seeks redress is a resident of this state, or the harm at issue occurred here. In those instances, California may be the only proper forum for the litigation, and a litigant’s necessary resort to the forum’s judicial system alone should not put that litigant on notice that he will be subject to suit here in perpetuity based on that forum selection. (See World-Wide, supra, 444 U.S at p. 297.)

Courts have been reluctant to find incidental participation in litigation in California sufficient to establish purposeful availment. In Edmunds v. Superior Court (1994) 24 Cal.App.4th 221 (Edmunds), limited partners of a California limited partnership sued Edmunds, one of the partnership’s lawyers who resided and practiced law in Hawaii, for malpractice in California. Edmunds represented the partnership in litigation related to their interest in a Hawaiian property pending in Hawaii. Edmunds’s contacts with California were limited to representing the California-based partnership, appearing with the general partner at a deposition in California, discussing the litigation with the partnership’s California-based counsel and reviewing documents drafted by California counsel. (Id. at p. 234.) The Court of Appeal concluded that California could not exercise personal jurisdiction over Edmunds. “The mere facts that to [represent his clients in the Hawaii litigation], he came to California, made phone calls and wrote letters to and from this state, and accepted payment from a California client, do not establish purposeful availment of the benefits and protections of California law.” (Ibid.) The court found that Edmunds lacked the necessary close relationship with California to assert personal jurisdiction because all his contacts with California were incidental. They occurred in his capacity as a Hawaiian lawyer, representing his client in litigation pending in Hawaii, relating to Hawaii real property. (Id. at p. 236; see also Crea v. Busby (1996) 48 Cal.App.4th 509, 515–516 (Crea) [no personal jurisdiction over Oregon resident who although licensed to practice law in California had not practiced law in California in 14 years, did not maintain an office, solicit clients, advertise, own property, or have obligations in California, and was contacted by Oregon residents to file suit in Oregon on behalf of an Oregon corporation regarding a licensing agreement breached in Oregon]; Jensen v. Jensen (2019) 31 Cal.App.5th 682, 687–688 (Jensen) [insufficient contacts to find personal jurisdiction where defendant nonresident filed an application and was appointed to be a guardian ad litem in a suit pending in California involving real property located in California, and the only actions taken were in a representative capacity, including assisting with verified discovery responses, and generally assisting with the litigation].)

Conversely, in Simons v. Steverson (2001) 88 Cal.App.4th 693 (Simons), the Court of Appeal found lawyer Steverson’s contacts with California sufficient to exercise personal jurisdiction. Steverson, an attorney licensed to practice law in California but not New York, worked as an associate at a New York law firm. On behalf of that firm, he provided legal services under California law to California resident plaintiffs. The court concluded those contacts were ample contacts, not merely “minimum contacts,” to warrant specific jurisdiction. (Id. at pp. 711–712; see also Brown v. Watson (1989) 207 Cal.App.3d 1306, 1314–1315 [specific jurisdiction warranted over Texas attorneys retained in California through plaintiffs’ California attorneys; paid by the California attorneys through a fee-splitting arrangement; regularly communicated with California lawyers and plaintiffs over a period of four years; and where the complaint alleged they were negligent in failing timely to effect service of process under Texas law, causing damage to California plaintiffs].)

These and other cases, whether they found personal jurisdiction warranted or not, address the practice of law in California and conclude that such practice, including the giving of legal advice and provision of legal services, whether or not rendered in the course of litigation, warrant the assertion of specific jurisdiction. The parties have not cited, nor have we found a case that finds purposeful availment based on a litigant’s participation in litigation as a plaintiff. However, since the jurisdictional inquiry is a fact based one, we cannot entirely exclude the idea that there could be facts sufficient to show that a litigant purposefully invoked “the privileges and protections of the forum state’s laws” by engaging in litigation here. (Burger King, supra, 471 U.S. at pp. 472–476; Vons, supra, 14 Cal.4th at p. 446.) Certain circumstances could show purposeful availment. These might include situations where a litigant “voluntarily” chose California to pursue litigation, although not required to do so. (See Jensen, supra, 31 Cal.App.5th at pp. 687–688), or where a litigant’s resort to the forum was regular and systematic enough as to not be “random, fortuitous, or attenuated.” (Burger King, at p. 475.)

Cooper’s resort to California as a forum for litigation is undisputed. In 2004, Cooper participated in a California action of an unspecified nature filed by TLC in federal district court. He personally sued his homeowners association and a furniture store in California. From 2006 to 2011, Cooper, TLC and Pixel were plaintiffs in a California patent-related lawsuit. Related to that litigation in California, Cooper traveled here to meet with counsel and participate in depositions on numerous occasions between 2004 and 2010. While these litigation activities in California are not insignificant, we have insufficient evidence to conclude which, if any, were elective. He was certainly required to sue the furniture store and homeowners association in California because they are located here. Regarding the various patent suits, there is no evidence to show whether resort to the California forum was purely elective or was required. Nor can we say that Cooper’s litigation related conduct was regular and systematic. (Burger King, supra, 471 U.S. at p. 475.) Traveling to California for depositions several times or to meet with counsel for pending patent litigation is insufficient to show purposeful availment. (Edmunds, supra, 24 Cal.App.4th at p. 234.)

2. Employment of California law firms

Among Cooper’s other activities in California, he has retained the services of professionals in California to assist with patent issues. From 2005 to 2006, he retained a California patent firm to determine whether a patent that was not governed by the License Agreements or the Mutual Releases was being infringed. In October 2013, that firm issued a cease-and-desist letter, on behalf of Watonga, accusing Evertz of violating patents held by Watonga at issue in this action.

Cooper chose a California firm operating in this state to review patent issues, thus purposefully availing himself of the benefits of conducting these activities in, and receiving the protections of, the laws of this forum. (Pavlovich, supra, 29 Cal.4th at p. 269; see Simons, supra, 88 Cal.App.4th at pp. 711–712.) Employing California lawyers entitles him to the benefit of California’s strict licensing and professional conduct requirements. If the California lawyer’s representation fell below the standards set by the rules of professional conduct, Cooper would have recourse in California to the Bar’s disciplinary process or a civil suit for malpractice. It is reasonable to conclude that by hiring lawyers in California and receiving the benefits thereof, he has purposefully availed himself of this forum. (See Brown v. Watson, supra, 207 Cal.App.3d at pp. 1314–1315.)

3. Cooper’s other Activities in California

Finally, Evertz argues that the various actions Cooper took in California on behalf of the corporate entities holding his patents as well as actions taken by the corporate entities themselves, should be imputed to Cooper under an alter ego theory. As addressed above, because Evertz did not raise an alter ego theory below as a basis for asserting personal jurisdiction, it cannot do so here.^[5] Absent an alter ego theory, the purpose and acts of other parties or entities cannot be imputed to Cooper for the purpose of assuming personal jurisdiction. “ ‘[P]ersonal jurisdiction over any non-resident individual must be premised upon forum-related acts personally committed by the individual.’ [Citation.]” (Crea, supra, 48 Cal.App.4th at pp. 516–517.) Evertz cannot show Cooper’s purposeful availment by relying on corporate conduct.

2. Forum Relatedness

Even if Cooper has “ ‘purposefully directed’ ” activities at California, Evertz cannot show that “this litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” (Burger King, supra, 471 U.S. at p. 472.) There must be “a connection between the forum and the specific claims at issue.” (Bristol-Myers, supra, 582 U.S. ___, 137 S.Ct. at p. 1781.)

Of all the contacts Cooper had with California, the only one clearly related to this litigation is his retention of a California law firm to issue the cease-and-desist letter written to Evertz on behalf of Watonga in 2013. Evertz argues that this shows sufficient relatedness between the current dispute and Cooper’s purposeful availment. We disagree. The use of a California lawyer to write one cease-and-desist letter does not establish a sufficient connection between the claims at issue here and California. (See for example Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc. (Fed. Cir. 1998) 148 F.3d 1355, 1360–1361 [sending of cease-and-desist letter not sufficient for specific personal jurisdiction because patentee has sufficient latitude to inform others of its patent rights without subjecting itself to jurisdiction in a foreign forum].)

The injuries alleged by Evertz do not arise out of or relate to Cooper’s conduct in California. The gravamen of Evertz’s complaint is that Watonga’s infringement claims from 2010 to 2014 violate the terms of the Licensing Agreements and the Mutual Releases, which were entered into in Illinois and had an Illinois forum selection clause. California simply does not have an interest in this matter. Asserting jurisdiction would not provide a California citizen with a convenient forum for redressing injuries inflicted by out-of-state actors, nor would it prevent an out of state actor, who purposefully derived benefit from activities in the state, from escaping the consequences from those activities. (Burger King, supra, 471 U.S. at pp. 473–474.) None of the patent infringement claims arose in California and Evertz was not injured here. Evertz is not domiciled in California, and neither is Watonga. The subject agreements were not entered into in this state, the agreements are not governed by California law, and the patent litigation was not filed here. These things all happened in Illinois. The only connection between the alleged violation of the Licensing Agreements and the Mutual Releases over a four-year period of time is one letter written by a California lawyer in 2013. This connection is too attenuated to support personal jurisdiction.

Evertz’s reliance on Electronics for Imaging, Inc. v. Coyle (Fed. Cir. 2003) 340 F.3d 1344 (Electronics) is misplaced. In Electronics, Coyle, a Nevada software developer applied for a patent. (Id. at pp. 1346–1347.) In the patent application process, Coyle reached out to Electronics for Imaging, Inc. (EFI), a California-based company to encourage it to purchase his technology. Coyle’s efforts included (1) hiring a lawyer in California, who communicated with EFI on multiple occasions about the progress of the pending patent application and Coyle’s successful lawsuits in the past against several large companies for infringement of other patents he held, (2) personally calling EFI to talk about the technology and (3) sending two representatives to EFI’s California facility to demonstrate the technology. (Id. at pp. 1347–1348, 1351.) After EFI declined to purchase his technology, Coyle accused it of patent infringement and threatened litigation. (Ibid.) EFI preemptively filed suit in California, seeking in part a declaration that Coyle’s patent claim was invalid, and Coyle successfully asserted that the court lacked personal jurisdiction over him. (Id. at p. 1348.) The United States Court of Appeals reversed, concluding that the totality of Coyle’s contacts with EFI in California in addition to his threats of infringement were “[f]ar from . . . random, fortuitous, or attenuated,” but instead constituted a purposeful availment of the benefits and protections of doing business in the state. (Id. at pp. 1351, 1354.)

We distinguish the facts in Electronics from those before us. Coyle did not merely hire an attorney in California, he also engaged in repeated contacts with EFI in the state, directly and through his attorney, about his technology and the status of his patent application. Here, other than the cease-and-desist letter, there were no repeated contacts, meetings or negotiations between the California lawyer, Cooper and Evertz. One letter in a conflict that spanned multiple years is “random, fortuitous, or attenuated.” (Electronics, supra, 340 F.3d at p. 1351.)

Because the claims against Cooper are far removed from any of his forum-related conduct, we conclude that Evertz has failed to establish the necessary connection between the forum and the specific claims at issue in this suit. (Rivelli, supra, 67 Cal.App.5th at p. 403.) Because Evertz has not met its initial burden in the jurisdictional analysis, we need not address whether the exercise of jurisdiction would be fair and reasonable, consistent with notions of fair play and substantial justice. (Pavlovich, supra, 29 Cal.4th at p. 269; Vons, supra, 14 Cal.4th at p. 446.)

As California lacks both general and specific jurisdiction over Cooper, the trial court did not err granting the motion to quash.

5. Outstanding Discovery

Evertz contends that even if we find no basis for personal jurisdiction, we should nonetheless remand the matter for further proceedings on its motion to compel Cooper to provide supplemental responses to outstanding discovery. Evertz contends that the trial court erred in not compelling Cooper to respond to its discovery prior to ruling on the motion to quash.

Evertz’s outstanding discovery seeks “[a]ll communications with any person located in California, including but not limited to threats of litigation, contracts, agreements, payments, or transactions[,]” because the responsive documents might reveal “the nature, extent, and substance of Cooper’s communications involving his patent cases, including the underlying litigation[,]” as well as his use of California-based counsel to enforce his patents.

We review the superior court’s order denying Evertz’s request for a continuance of the motion to quash to permit this discovery for abuse of discretion. (In re Auto. Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.) We find no such abuse.

As previously discussed, a nonresident defendant’s litigation activities in the forum state, even if significant, are relevant to establish specific personal jurisdiction only to the extent that the claims asserted in the action arise out of or relate to those activities. Whatever efforts Cooper may have made to enforce his patents in California that are unrelated to those covered by the Agreement and Mutual release between the parties cannot inform the personal jurisdiction inquiry. Thus, any evidence of such efforts would not be helpful to Evertz, regardless of the extent of Cooper’s unrelated activities in California. (Bristol-Myers, supra, 582 U.S. ___, 137 S.Ct. at p. 1778.)

Nor are we convinced that further discovery would reveal additional California conduct related to the instant matter. Had California counsel been further engaged in the underlying patent infringement claims, Evertz would itself have evidence of this activity since it was the recipient of the cease-and-desist letter and other communications claiming patent infringement. Since it has not produced such evidence, we find it likely that any additional work by California counsel in this dispute would be incidental attenuated and insufficient to establish personal jurisdiction.

Because Cooper’s enforcement efforts in California had no connection with Evertz’s claims, and because Evertz appears to have received only one letter from California counsel regarding the alleged underlying patent infringement, the trial court did not abuse its discretion in denying Evertz’s requests to continue the hearing on the motion to quash to allow the additional discovery.

3. Disposition

The order quashing service of the summons and complaint on Cooper is affirmed. Cooper is awarded his costs on appeal.

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Greenwood, P. J.

WE CONCUR:

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Grover, J.

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Danner, J.

Evertz Technologies, Ltd et al. v. Cooper

H045925

^[1] After briefing was complete in this appeal, Cooper filed an unopposed motion to augment the record with various documents. The motion is granted and the record is ordered augmented with the documents attached to the motion.

^[2] Another entity holding development, licensing and marketing rights to Cooper’s patents was Crystal Image Technology (Crystal). The record does not include information about where Crystal was incorporated.

^[3] Cooper also filed a motion to dismiss this action based on principles of forum non conveniens. The superior court ultimately denied that motion as moot, a ruling that is not at issue on this appeal.

^[4] The court noted that an earlier ruling relating to this discovery by another judge found that Cooper’s failure to timely respond to Evertz’s discovery request for these materials constituted a waiver of all objections, including those based on the attorney-client privilege and the attorney work product doctrine.

^[5] Although Evertz did not assert an alter ego theory in the trial court as a basis for jurisdiction over Cooper, it did argue that Cooper’s activities in California on behalf of Pixel, TLC, Watonga and CIT constituted a purposeful availment by him of the benefits of conducting business here.