Moises Bernal et al vs Audrey Ovington Enterprises INC et al

Case Number

24CV03487

Case Type

Hearing Date / Time

Mon, 11/18/2024 - 10:00

Nature of Proceedings

CMC; Motion: Quash Service of Summons

Tentative Ruling

Moises Bernal, et al. v. Audrey Ovington Enterprises, Inc., et al.   

Case No. 24CV03487

           

Hearing Date: November 18, 2024                                        

HEARING:              1. Wayne Wilson’s Motion to Quash Service of Summons and

                                      Complaint

                                    2. Janice Wilson’s Motion to Quash Service of Summons and

                                                Complaint

ATTORNEYS:        For Plaintiffs Moises Bernal and Riley Trent: Nicole K. Ricotta, Anticouni & Ricotta

                                    For Defendants Audrey Ovington Enterprises, Inc. dba Cold

                                                Springs Tavern and Janice Wilson: Melissa J. Fassett,

                                                Price Postel & Parma, LLP

                                   

                                   

TENTATIVE RULING:

1. Wayne Wilson’s Motion to Quash Service of Summons and Complaint is taken off-calendar as moot.

2. The hearing on Janice Wilson’s Motion to Quash Service of Summons and Complaint is continued to March 24, 2025, in order for plaintiffs to conduct jurisdictional discovery.

            a. Any supplemental opposition to the motion to quash shall be filed and served no later than February 18, 2025. Any supplemental reply to plaintiffs’ supplemental opposition shall be filed and served no later than March 10, 2025.

Background:

This action commenced on June 20, 2024, by the filing of the unverified complaint by plaintiffs Moises Bernal (“Bernal”) and Riley Trent (“Trent”) (collectively “plaintiffs’) against defendants Audrey Ovington Enterprises, Inc. dba Cold Springs Tavern (“CST”), Wayne Wilson (“Wayne”), and Janice Wilson (“Janice”) setting forth causes of action for: (1) Whistleblower Retaliation, (2) Wrongful Termination, (3) Intentional Infliction of Emotional Distress, (4) Failure to Pay Overtime Wages, (5) Failure to Pay all Regular Wages, (6) Failure to Pay Minimum Wage, (7) Failure to Allow and Pay for Meal Periods, (8) Failure to Allow and Pay for Rest Periods, (9) Failure to Pay Wages at Time of Termination, (10) Failure to Provide Proper Wage Statements, (11) Failure to Keep Proper Payroll Records, (12) Failure to Pay Accrued/Unused Vacation Pay, (13) Failure to Reimburse Business Expenses, and (14) Unfair Business Practices. (Note: Due to common surnames, Wayne Wilson and Janice Wilson will be referred to by their given names for clarity. No disrespect is intended.)

Plaintiffs allege that Bernal worked for CST from March 1, 1993, until his termination from employment on January 7, 2024, for making complaints that he did not receive compensation for a vacation he took in September 2023, as well as other complaints. Trent worked for CST from January 7, 2024, until his employment ended in March 2024. The complaint alleges that plaintiffs suffered numerous violations of the Labor Code while employed at CST.

As relevant to the present motions, plaintiffs allege that Wayne is and was the Chief Executive Officer of CST and that Janice is and was the Chief Financial Officer (“CFO”) of CST.

CST was served with the summons and complaint on June 27, 2024, by notice and acknowledgment of receipt.

Wayne was personally served on August 9, 2024, in Pataskala, Ohio. Janice was personally served on August 14, 2024, in New Albany, Ohio.

On August 19, 2024, CST filed its answer to plaintiffs’ complaint, asserting a general denial and 24 affirmative defenses.

On September 12, 2024, Wayne and Janice separately specially appeared by filing amended motions to quash service of summons and complaint based on lack of jurisdiction.

On October 3, 2024, plaintiffs filed a request for dismissal as to Wayne. Wayne’s motion to quash is therefore moot and will be taken off-calendar.

Plaintiffs oppose Janice’s motion to quash.

Analysis:

A motion to quash service of summons based on lack of jurisdiction of the court is permitted by Code of Civil Procedure section 418.10, subdivision (a)(1).

“The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a judgment of its courts. [Citation.] Although a nonresident’s physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have ‘certain minimum contacts . . . such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ [Citation.]” (Walden v. Fiore (2014) 571 U.S. 277, 283.)

“Personal jurisdiction is of two types: general and specific. General jurisdiction exists when the activities of a nonresident in the forum state are substantial, continuous, and systematic, or extensive and wide-ranging. [Citation.] In such circumstances, it is not necessary that the cause of action be related to the defendant’s forum activities. [Citation.] In contrast, under specific jurisdiction, the lawsuit must arise out of, or be related to, the defendant’s contacts with the forum. [Citation.]” (Malone v. Equitas Reinsurance, Ltd. (2000) 84 Cal.App.4th 1430, 1436, fn. 2.)

Plaintiffs argue that specific jurisdiction exists because of Janice’s contacts with California. Plaintiffs do not argue that general jurisdiction exists.

“ ‘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” ’ ” [citation][.]’ [Citation.]” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)

“In order for a state court to exercise specific jurisdiction, “ ‘the suit’ ” must “ ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’ ” [Citations.] In other words, there must be “ ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’ ” [Citation.] For this reason, “ ‘specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ” [Citation.]” (Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) 582 U.S. 255, 262.)

By way of declaration, Janice declares:

“On August 5, 2019, the Corporation [Audrey Ovington Enterprises, Inc.] named officers, including Wayne Wilson (as CEO), and me as CFO. Although we are officers of the Corporation, we do not reside in the State of California. I am a resident of the State of the Ohio and have never lived in the state of California, and have traveled there only intermittently and don’t engage in business in California. I

am not paid for serving as CFO of the Corporation.” (Janice Decl., ¶ 5.)

“Cold Springs Tavern is managed locally, by people who live in the state of California who oversee its operations and its employees. The General Manager is primarily responsible for its operations and provides daily oversight of the employees and payroll. I do not oversee any of the employees or any of the employee relationships. I am not involved in overseeing employee schedules, timekeeping, or payroll.” (Janice Decl., ¶ 6.)

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ ” [Citation.]” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203.)

Plaintiffs have not provided sufficient evidence that all jurisdictional criteria are met.

Plaintiffs submitted the declaration of their counsel, with six exhibits, in opposition to Janice’s motion to quash. Janice objects to several portions of the declaration and exhibits.

Among the exhibits that Janice objects to are: (1) Exhibit A - State of California Office of the Secretary of State Statement of Information filed October 18, 2023, (2) Exhibit B - State of California Office of the Secretary of State Statement of Information filed August 3, 2024. Judicial notice may be taken of: “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) The documents are not reasonably subject to dispute. In fact, the documents do not contain any additional information about Janice than is included in her own declaration. They essentially confirm that Janice is the CFO of CST and that she resides in Ohio. Plaintiff’s objections to the introduction of these two documents are overruled. However, the documents do not tend to prove any of the jurisdictional criteria.

Janice also objects to portions of Exhibit F. Most of that exhibit consists of correspondence between counsel and does not constitute evidence of jurisdiction over Janice. Plaintiffs argue that a document from the State of California Franchise Tax Board, called a demand to furnish information, which has Janice’s name printed on it as the person who filled the form out, is evidence of contacts to California. It is not. Even if it were, the document is unauthenticated, plaintiff’s counsel lacks personal knowledge of the document, and it constitutes hearsay. Janice’s objection to the document is sustained. Also contained as part of Exhibit F are two emails, alleged to be from Janice to Paris Trefz, regarding dental rates, healthcare rates, and premium amounts in Paychex. The objections to these two emails will be sustained for the same reasons given for the demand to furnish information.

Even if all of the exhibits provided by plaintiffs were properly authenticated and admissible, plaintiffs would not prevail in their opposition. Such minor ministerial tasks are insufficient to confer personal jurisdiction.

Plaintiffs have failed to meet their burden of proving by a preponderance of the evidence that all jurisdictional criteria are met.

Plaintiffs have requested that, in the event the court determines they have not met their burden, the court continue the hearing on the motion to allow them time to conduct discovery regarding jurisdictional facts as to Janice. CST argues that plaintiff should not be given leave to conduct jurisdictional discovery. “A plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof. [Citation.]” (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.) Plaintiffs request to continue the hearing so that they may conduct jurisdictional discovery will be granted. Should plaintiffs not obtain sufficient evidence to confer personal jurisdiction over Janice, they are encouraged to file a dismissal, as to her.

A briefing schedule will be set. Counsel are reminded to comply with the following rules regarding bookmarks of exhibits:

“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Cal. Rules of Court, rule 3.110 (f)(4).)

“All electronic documents must be in text searchable format and must comply with the formatting and content requirements of the California Rules of Court for electronic documents, including particularly CRC 3.1110(f)(4) requiring electronic bookmarks.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(1).)

“Compliance with all of the formatting requirements for electronic documents is extremely important for the court’s timely consideration of e-filed documents. In cases of noncompliance, the court may, in its discretion, order any, or all, of the following in addition to any other sanction permitted by law: (i) the noncomplying document to be stricken as improperly filed; (ii) the continuance of the hearing to which the noncomplying document pertains; or, (iii) the imposition of monetary sanctions for violation of the California Rules of Court or these Local Rules, following adequate notice and an opportunity to be heard.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(2).)