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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-30-2012 3:58 pm
Case Number: CGC-11-509638
Filing Date: Aug-30-2012 3:57
Filed by: ANNIE PASCUAL
Juke Box: 001 Image: 03746455
OPPOSITION
FRANK ALIOTO et al VS. ADAM BURGESS et al
001003746455
Instructions:
Please place this sheet on top of the document to be scanned.Co me NAA FF YW NY
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Frangison Guraty
Ramon Rossi Lopez, Bar No. 86361 San Pa
Christina Anne Fountain, Bar No. 111220 AUG 3 0 2012
Troy A. Brenes, Bar No. 249776
Matthew R. Lopez, Bar No. 263134 CLERK. OF JHE COURT
LOPEZ McHUGH LLP BY: papa et
100 Bayview Circle
North Tower, Suite 5600
Newport Beach, CA 92660
Telephone: (949) 737-1501
Facsimile: (949) 737-1504
Attorneys for Plaintiffs,
FRANK ALIOTO and KRISTEN ALIOTO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
FRANK ALIOTO AND KRISTEN ALIOTO, ) Case No. CGC-11-509638
HUSBAND AND WIFE, )
) Honorable Harold E. Kahn
Plaintiffs, )
vs. } PLAINTIFFS’ SUPPLEMENTAL
} OPPOSITION TO MOTION BY
ADAM BURGESS & LINDSAY BURGESS, ) DEFENDANTS TO QUASH SERVICE OF
Individually & dba PLAYA FIESTA ) SUMMONS & COMPLAINT;
BEACHCLUB & HOTEL PLAYA FIESTA ) DECLARATION OF CHRISTINA ANNE
BEACHCLUB & HOTEL, a business entity ) FOUNTAIN; DECLARATION OFJOSE
form unknown, and DOES 1 to 100, ) RALPH ESPITIA; [PROPOSED] ORDER
)
Defendants. ) Date: September 13, 2012
) Time: 9:30 a.m.
) Dept: 302
)
) Complaint Filed: December 3, 2010
) Trial Date: None Set
)
)
SSS
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERowe DN FF WN
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TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
COME NOW, Plaintiffs FRANK ALIOTO and KRISTEN ALIOTO, HUSBAND AND WIFE,
to submit the following Supplemental Memorandum of Points and Authorities in Opposition to the
Motion by Defendants ADAM BURGESS and LINDSAY BURGESS and PLAYA FIESTA
BEACHCLUB & HOTEL (“Defendants”) to Quash Summons & Complaint for Improper Service and
for Lack of Personal Jurisdiction. This Supplemental Opposition is based upon the following
Mernorandum of Points and Authorities, the Declaration of Jose Ralph Espitia with attached exhibits,
the Declaration of Christina Anne Fountain with attached exhibits, and upon such further or
supplemental oral and/or documentary evidence as may be presented to the court prior to and/or at the
time of the hearing on the motion.
Plaintiffs also base this supplemental opposition on, and hereby fully incorporate into this
opposition by this reference (in the interests of avoiding duplication and repetition) the previously filed
Memorandum of Points and Authorities, Declaration of Christina Anne Fountain, Declaration of Frank
Alioto, Declaration of Kristen Alioto, and Declaration of the Process Server from Ace Attorney
Services, all with the respectively attached exhibits.
Lopez McHugh LLP
By:
Attorney for Plaintiffs
FRANK ALIOTO & KRISTEN ALIOTO
2
PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERCm WAH FB WN
mR RMN ee oe ee ee ee
BRRRBRRSE SS SER RTE BSR EAS
MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
The Court is aware that this action accrued on Frank and Kristen Alioto’s wedding day —
December 7, 2008. Prior to their wedding, Frank and Kristen had been a “couple” for many years.
Frank and Kristen were married during what is known as a “sunset” “destination wedding” ceremony
and reception at the Playa Fiesta Hotel and Beachclub (“Hotel”), located in Puerto Vallarta, Mexico.
The Hotel is advertised and marketed to California residents, and is owned and operated by San
Francisco, California residents Mr. and Mrs Adam and Lindsay Burgess.
Defendants, as the Hotel owners, advertised and encouraged the wedding party and guests to
jump into the Hotel pool during the evening wedding reception, wearing their full wedding attire, as part|
and parcel of the “destination wedding experience” promised by defendants. During their evening
wedding reception, Frank jumped into the swimming pool, as was promoted and encouraged by
Defendants, as part of the Hotel’s “unique” wedding experience.
Unknown to Frank, the pool had several submerged solid cement bar stools at the location where
Frank entered the pool. Also at the location where Frank entered the pool, the owners had placed a
wooden bridge running over the top of the pool creating the risk of danger that one coming to the
surface of the pool would impact the underside of the bridge covering the top of the pool.
When Frank came to the water’s surface, he had paralysis from his neck down to his feet. Frank
suffered complete quadriplegia. His condition is permanent. He has never regained use of his body
from the neck down. Frank now spends his life in a wheelchair and requires around-the-clock 24-hour
daily care.
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERCD ORD MW BW N
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I. PROCEDURAL BACKGROUD
On February 22, 2012, the court granted Plaintiffs’ application to effect service of the Summons
and Complaint upon defendants by Publication, based upon Plaintiffs proof of due diligence in
attempting to serve Defendants personally and by mail. Plaintiffs suspected that Defendants were
intentionally avoiding service of process. Plaintiff filed proof of service by publication on April 20,
2012.
On May 18, 2012, Defendants brought a Motion to Quash Service of Process for Improper
Service and Lack of Personal Jurisdiction.
On June 4, 2012, Plaintiffs filed a Memorandum of Points and Authorities, Declarations, and
supporting Exhibits in Opposition to the Motion to Quash.
On June 6, 2012, Defendants filed a Reply and declarations to Plaintiffs’ Opposition and
declarations.
On June 7, 2012, Plaintiffs filed a Supplemental Brief in Opposition to the Motion to Quash
Qn June 13, 2012, Defendants’ filed an additional Declaration seeking to quash service.
On July 2, 2012, this Honorable Court issued a tentative ruling that continued the hearing on the
Motion to Quash to September 13, 2012, to allow Plaintiffs’ to conduct jurisdiction discovery.
Plaintiffs thereafter undertook investigative measures to locate information regarding
Defendants’ contacts with California.
On July 20, 2012, Plaintiffs also personally served counsel for Defendants, Form Interrogatories
and Special Interrogatories for Adam Burgess and Lindsay Burgess, Individually, and Form
Interrogatories to Playa Fiesta Beachelub and Hotel.
On August 22, 2012, Plaintiffs received Defendants’ discovery responses.
On August 30, 2012, Plaintiff sent a meet and confer letter to defendants’ counsel informing that
Defendants’ answers to the interrogatories were inadequate. The meet and confer letter asked for
supplemental responses.
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPI.AINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDER.oOo wm ID DAW BF WN
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I. THE MOTION SHOULD BE DENIED - DEFENDANTS HAVE MINIMUM
CONTACTS WITH CALIFORNIA, AND SPECIFICALLY WITH SAN
FRANCISCO,
Defendant Adam Burgess answered the interrogatories, stating under oath, that he owns the real
property located at 479 Steiner St., San Francisco, CA 94117. This is the same property address where
plaintiffs made numerous attempts to serve the Summons and Complaint.
In addition to owning real property in the state of California, which appears to be a rental
property (See Declaration of Christina Anne Fountain, Ex. 1), Adam Burgess’s answers to
interrogatories (Attached to the Declaration of Christina Anne Fountain) state that he:
Has a valid California Driver’s License.
Owns and maintains his personal property at 479 Steiner Street, San Francisco, California.
Maintains and uses a California Bank account at Bank of America
Has filed California State tax returns annually for the past 10 years.
Has filed U.S. Federal tax returns annually for the past 10 years.
In 2010, he was in California for 28 days.
Has a cellular telephone number with a San Francisco 415 area code.
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Has a Comcast landline telephone number with a San Francisco 415 area code. (See
Declaration of Jose Ralph Espitia)
9. Owns a Ford vehicle registered in the state of California. (See Declaration of Jose Ralph
Espitia)
Defendant Lindsay Burgess’s answers to interrogatories (Attached to the Declaration of
Christina Anne Fountain) also state that she:
1. Is married to Adam Burgess.
2. Owns and maintains her personal property at 479 Steiner Street, San Francisco, California.
3. Has a valid California Driver’s License.
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERoO me I DW RB WY HE
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4. Maintains and uses a California bank account at Wells Fargo (Defendant failed to adequately
answer the interrogatory and failed to provide the actual address of her California Wells Fargo
bank account).
5. Maintains and uses a second California bank account at Bank of America. (Defendant failed to
adequately answer the interrogatory and failed to provide the actual address of her California
Bank of America bank account).
6. Lindsay Burgess was physically present in California in
a. 2008 for at least 45 days;
b. 2009 for at least 35 days;
c. 2010- 11 days; (June 15-26,2010) ;
d. 2011- 69 days (July I - September 1, 2011, December 8-13, 2011)
e. 2012-13 days (to date) ( January 8-16, 2012; June 10-13, 2012.
As shown in Plaintiffs’ previously filed opposition papers, declarations, and exhibits, Defendants
advertised and marketed the Hotel to Plaintiffs within the State of California both verbally, in writing,
and on their interactive website, during the months prior to December 7, 2008 for the sole purpose of
receiving Plaintiffs’ payment for Plaintiffs’ complete use of the Hotel for their wedding and their
California-resident wedding guests. All communications between Plaintiffs and Defendants regarding
the wedding and Hotel occurred within the State of California and/or over a California area code
telephone. Plaintiffs paid, and Defendants received payments, for the Hotel accommodations all within
the State of California.
Plaintiffs previously informed the court that defendants operate an interactive website in order to
advertise the Hotel to California residents such as Plaintiffs and their California -resident wedding
guests. The website is www.playafiesta.com and contains numerous interactive features, which allow
California residents such as Plaintiffs and their wedding guests to make and pay for reservations at
Defendants’ Hotel." Moreover, defendants also communicated with all of Plaintiffs’ California-resident
"Tn order to avoid repetition, Plaintiffs refer the Court to Plaintiffs’ previously filed opposition , which provides additional
information regarding the interactive nature of Defendants’ website for their Hotel.
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDER.Cm YN A HW FB wWN
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family and friends in accepting their payments and reservations for a one week stay at Defendants’
Hotel. Plaintiffs’ family and friends knew of the Hotel only through communications they received in
California. ,
Defendants admit they own real property in San Francisco. Regular mail sent to Defendants San
Francisco address was never returned, which shows they received the mail. (See, Declaration of Jose
Ralph Espitia.) Defendants maintain a San Francisco telephone number, which they used numerous
times to communicate with Plaintiffs. Adam Burgess also has a landline telephone number with a 415
area code through the telephone service provider COMCAST. (See, Declaration of Jose Ralph Espitia.) |
Plaintiffs properly requested service by publication after making numerous and extensive
unsuccessful attempts to serve Defendants. (See, the previously file Fountain Decl. fff 2-13) Code of
Civ. P. § 415.50. Public records indicate that Defendants own the real property located at 479 Steiner
Street and reside at 479 Steiner Street, #7, San Francisco, California 94117. As shown in Plaintiffs’
affidavits, Defendants informed Plaintiffs that Defendants reside in San Francisco, California. Plaintiffs
relied upon Defendants’ representations about being California residents. Plaintiffs believed they were
dealing with persons who were California residents, just as Plaintiffs-are California residents. Plaintiffs
called Defendants to, and Defendants called plaintiffs from, the 415 area code telephone number.
On February 22, 2012, the Court granted Plaintiffs’ application for service by publication. As
stated in Plaintiffs’ previously filed opposition to this motion, Plaintiffs properly ran publication notices
and timely filed their proof of service by publication? The service was successful, in that Defendants
are now attempting to make this Honorable court believe that Defendants do not have minimum contacts|
with California.
1. Personal Jurisdiction Is Proper Because Defendants Are Domiciled In The State Of
California.
The additional information obtained by plaintiffs only serves to further cement the fact that
Defendants have the required “minimum” contacts with California. Plaintiffs have provided the Court
with more than sufficient evidence to show that defendants intend to continue their domicile and
* Plaintiffs again respectfully request the Court to refer to Plaintiffs’ previously filed briefs, declarations, and exhibits so as to
avoid duplication and repetition in this supplemental opposition.
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF|
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERoe WA nH FY NH
nN VN N wR RM eB Se Se ee ee me ee
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contacts with the State of California. It is undisputed that Defendants have the sufficient contacts with
California for this Court to maintain jurisdiction over defendants in this action.
Persons domiciled within the state of California when an action is commenced are subject to
personal jurisdiction of local courts even if service of process is made outside the state. Milliken v.
Meyer (1940) 311 U.S. 457, 462; In Re Marriage of Tucker (1991) 226 Cal. App. 3d. 1258-1259.
Once a domicile is established it is presumed to continue until a new domicile is established. Jd.
All of Defendants real property, personal property, bank accounts, drivers’ licenses, and vehicles
are in California. Plaintiffs suspect Defendants are using their extended stays in Mexico as an
unmeritorious manner in which to claim this court does not have jurisdiction over defendants. But the
evidence shows that Defendants intend to continue their domicile in California, and Defendants have
made no showing that they intend to change their actual domicile or citizenship from California to
Mexico.
2, Even If Defendants Were Not Domiciled Within the State of California, Defendants
have Sufficient Minimum Contacts To Justify Assertion of Jurisdictions
“California's long-arm statute authorizes California courts to exercise jurisdiction on any basis
not inconsistent with the Constitution of the United States or the Constitution of California. (Code Civ.
Proc., § 410.10.) A state court's assertion of personal jurisdiction over a nonresident defendant who has
not been served with process within the state comports with the requirements of the due process clause
of the federal Constitution if the defendant has such minimum contacts with the state that the assertion
of jurisdiction does not violate “ ‘traditional notions of fair play and substantial justice.’ Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4" 434, 444 (quoting Internat. Shoe Co. v.
Washington (1945) 326 U.S. 310, 316). In other words, the exercise of jurisdiction must be reasonable.
Cornelison v. Chaney (1976) 16 Cal.3d 143, 147; Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 714.
Plaintiffs again refer to the case of Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal. gh
1054, in which the California Supreme Court found that advertising and obtaining clients in the State of
California was sufficient to establish jurisdiction. Based on defendants’ advertising into California and
that they obtained customers from California, the High Court found the defendants had sufficient
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PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERCe QW Dw BY NY
MW ON RY NY NNN BS ee ee ee Be Be
RBekR&R BSS Ge IAAHDE HH HS
contacts with California to make specific personal jurisdiction appropriate and that these contacts were
related to the underlying cause of action. fd.
Just like Defendants here, the hotels in Snowey maintained an Internet Web site and toll-free
phone number where visitors or callers may obtain room quotes and make reservations. The court
further noted that defendants’ online website established purposeful availment based on its level of
interactivity and in the manner it targeted CA residents.
Here, the exercise of jurisdiction in the state of California is reasonable: (1) Defendants maintain
an interactive website, which Plaintiff's used within the State of California to access information and
communicate with Defendants about the resort property; (2) Defendants sent advertising materials about
the resort property to Plaintiff's in California; (3) the before-mentioned website directed Plaintiffs to a
California based telephone number; (4) Defendants communicated with Plaintiffs on multiple occasions
regarding the resort property, reservations, the terms of the contract, and payment using the California
based telephone number; (5) Plaintiffs believe and are informed that payment was made and received
within the state of California; (6) Plaintiffs were told by Defendants that they reside within the state of
California and only go to Mexico for part of the year; (7) Defendants own real and personal property in
the state of California.
TL CONCLUSION
WHEREFORE, Plaintiffs request that Defendants motion be denied, in its entirety, and that
Defendants be ordered to file and serve an appropriate response to the Complaint within 10 days.
Respectfully submitted,
"REC E
CHRISTINA ANNEEGOUNTAIN
Attomey for Plaintiffs
FRANK ALIOTO & KRISTEN ALIOTO
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PLAINTIEES’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDERCc me YD AN RF WN |
wow N NN RN NH YY Se Se ee Be eB eee
RBAXa a Fo He FSF SoC WMO IN DHA BwWw YH KH
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
lam a resident of the county aforesaid: I am over the age of eighteen years and not a party to the
within entitled action: my business address is 100 Bayview Circle, Suite 5600, Newport Beach,
California 92660.
On August 30, 2012 I served the within PLAINTIFFS’ SUPPLEMENTAL OPPOSITION
TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT;
DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OFJOSE RALPH
ESPITIA; [PROPOSED] ORDER on interested parties in said action, by placing a true copy thereof
enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail in Newport
Beach, California addressed as follows: SEE ATTACHED SERVICE LIST
BY REGULAR MAIL: I am readily familiar with the firm’s practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with US
Postal Service on that same day with postage thereon fully prepaid at Newport Beach,
California in the ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is more than one
day after date of deposit for mailing in affidavit.
x BY FEDERAL EXPRESS/UPS OVERNIGHT DELIVERY SERVICE: Said documents
were delivered to an authorized courier or driver authorized by the express service carrier to
receive documents with delivery fees paid or provided for.
BY FACSIMILE: Said documents were transmitted by facsimile transmission and
the transmission was reported as complete and without error.
BY E-MAIL: Said documents were transmitted by electronic mail transmission and
the transmission was reported as complete and without error.
BY PERSONAL SERVICE: Said documents were personally delivered by:
[] leaving copies at the attorney’s office, in an envelope or package clearly
labeled to identify the attorney being served;
[ ] with a receptionist or, with a person having charge thereof,
[ ] in a conspicuous place in the office between the hours of 9 a.m. and 5 p.m.
[] by leaving copies at the individual's residence with some person of not less than 18
years of age;
[] in a conspicuous place in between the hours of 8 in the moming and 6 p.m.
I declare, under penalty of perjury unger the laws of the State of Galifornia that the foregoing is
true and correct. Executed on August 30, 2012 at, eft’Beach, ftalifornia.
10
PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDER.Co ta DH FY YH =
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RBRRRRERBRES SkRBA DARE K SE SD
SERVICE LIST
Bradley Jameson
PHILLIPS, SPALLAS & ANGSTADT, LLP
Three Embarcadero Center, Ste. 550
San Francisco, CA 94111
Telephone: 415.278.9400
Facsimile 415.278.9411
il
PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF
SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF
JOSE RALPH ESPITIA; [PROPOSED] ORDER
Preview
OOOO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-30-2012 3:58 pm Case Number: CGC-11-509638 Filing Date: Aug-30-2012 3:57 Filed by: ANNIE PASCUAL Juke Box: 001 Image: 03746455 OPPOSITION FRANK ALIOTO et al VS. ADAM BURGESS et al 001003746455 Instructions: Please place this sheet on top of the document to be scanned.Co me NAA FF YW NY i) bow Me RN Re es Se Be ese Se Se Be Se RBRRRR BSF SF SDe UAHA RYN EE DO Frangison Guraty Ramon Rossi Lopez, Bar No. 86361 San Pa Christina Anne Fountain, Bar No. 111220 AUG 3 0 2012 Troy A. Brenes, Bar No. 249776 Matthew R. Lopez, Bar No. 263134 CLERK. OF JHE COURT LOPEZ McHUGH LLP BY: papa et 100 Bayview Circle North Tower, Suite 5600 Newport Beach, CA 92660 Telephone: (949) 737-1501 Facsimile: (949) 737-1504 Attorneys for Plaintiffs, FRANK ALIOTO and KRISTEN ALIOTO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO FRANK ALIOTO AND KRISTEN ALIOTO, ) Case No. CGC-11-509638 HUSBAND AND WIFE, ) ) Honorable Harold E. Kahn Plaintiffs, ) vs. } PLAINTIFFS’ SUPPLEMENTAL } OPPOSITION TO MOTION BY ADAM BURGESS & LINDSAY BURGESS, ) DEFENDANTS TO QUASH SERVICE OF Individually & dba PLAYA FIESTA ) SUMMONS & COMPLAINT; BEACHCLUB & HOTEL PLAYA FIESTA ) DECLARATION OF CHRISTINA ANNE BEACHCLUB & HOTEL, a business entity ) FOUNTAIN; DECLARATION OFJOSE form unknown, and DOES 1 to 100, ) RALPH ESPITIA; [PROPOSED] ORDER ) Defendants. ) Date: September 13, 2012 ) Time: 9:30 a.m. ) Dept: 302 ) ) Complaint Filed: December 3, 2010 ) Trial Date: None Set ) ) SSS 1 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERowe DN FF WN moe os NR = Oo 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: COME NOW, Plaintiffs FRANK ALIOTO and KRISTEN ALIOTO, HUSBAND AND WIFE, to submit the following Supplemental Memorandum of Points and Authorities in Opposition to the Motion by Defendants ADAM BURGESS and LINDSAY BURGESS and PLAYA FIESTA BEACHCLUB & HOTEL (“Defendants”) to Quash Summons & Complaint for Improper Service and for Lack of Personal Jurisdiction. This Supplemental Opposition is based upon the following Mernorandum of Points and Authorities, the Declaration of Jose Ralph Espitia with attached exhibits, the Declaration of Christina Anne Fountain with attached exhibits, and upon such further or supplemental oral and/or documentary evidence as may be presented to the court prior to and/or at the time of the hearing on the motion. Plaintiffs also base this supplemental opposition on, and hereby fully incorporate into this opposition by this reference (in the interests of avoiding duplication and repetition) the previously filed Memorandum of Points and Authorities, Declaration of Christina Anne Fountain, Declaration of Frank Alioto, Declaration of Kristen Alioto, and Declaration of the Process Server from Ace Attorney Services, all with the respectively attached exhibits. Lopez McHugh LLP By: Attorney for Plaintiffs FRANK ALIOTO & KRISTEN ALIOTO 2 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERCm WAH FB WN mR RMN ee oe ee ee ee BRRRBRRSE SS SER RTE BSR EAS MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF FACTS The Court is aware that this action accrued on Frank and Kristen Alioto’s wedding day — December 7, 2008. Prior to their wedding, Frank and Kristen had been a “couple” for many years. Frank and Kristen were married during what is known as a “sunset” “destination wedding” ceremony and reception at the Playa Fiesta Hotel and Beachclub (“Hotel”), located in Puerto Vallarta, Mexico. The Hotel is advertised and marketed to California residents, and is owned and operated by San Francisco, California residents Mr. and Mrs Adam and Lindsay Burgess. Defendants, as the Hotel owners, advertised and encouraged the wedding party and guests to jump into the Hotel pool during the evening wedding reception, wearing their full wedding attire, as part| and parcel of the “destination wedding experience” promised by defendants. During their evening wedding reception, Frank jumped into the swimming pool, as was promoted and encouraged by Defendants, as part of the Hotel’s “unique” wedding experience. Unknown to Frank, the pool had several submerged solid cement bar stools at the location where Frank entered the pool. Also at the location where Frank entered the pool, the owners had placed a wooden bridge running over the top of the pool creating the risk of danger that one coming to the surface of the pool would impact the underside of the bridge covering the top of the pool. When Frank came to the water’s surface, he had paralysis from his neck down to his feet. Frank suffered complete quadriplegia. His condition is permanent. He has never regained use of his body from the neck down. Frank now spends his life in a wheelchair and requires around-the-clock 24-hour daily care. 3 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERCD ORD MW BW N wow we RR RP RN NE eH eB ee Se Re Se a a WO OW BF BW HB SF SO ON DH F BW NY I. PROCEDURAL BACKGROUD On February 22, 2012, the court granted Plaintiffs’ application to effect service of the Summons and Complaint upon defendants by Publication, based upon Plaintiffs proof of due diligence in attempting to serve Defendants personally and by mail. Plaintiffs suspected that Defendants were intentionally avoiding service of process. Plaintiff filed proof of service by publication on April 20, 2012. On May 18, 2012, Defendants brought a Motion to Quash Service of Process for Improper Service and Lack of Personal Jurisdiction. On June 4, 2012, Plaintiffs filed a Memorandum of Points and Authorities, Declarations, and supporting Exhibits in Opposition to the Motion to Quash. On June 6, 2012, Defendants filed a Reply and declarations to Plaintiffs’ Opposition and declarations. On June 7, 2012, Plaintiffs filed a Supplemental Brief in Opposition to the Motion to Quash Qn June 13, 2012, Defendants’ filed an additional Declaration seeking to quash service. On July 2, 2012, this Honorable Court issued a tentative ruling that continued the hearing on the Motion to Quash to September 13, 2012, to allow Plaintiffs’ to conduct jurisdiction discovery. Plaintiffs thereafter undertook investigative measures to locate information regarding Defendants’ contacts with California. On July 20, 2012, Plaintiffs also personally served counsel for Defendants, Form Interrogatories and Special Interrogatories for Adam Burgess and Lindsay Burgess, Individually, and Form Interrogatories to Playa Fiesta Beachelub and Hotel. On August 22, 2012, Plaintiffs received Defendants’ discovery responses. On August 30, 2012, Plaintiff sent a meet and confer letter to defendants’ counsel informing that Defendants’ answers to the interrogatories were inadequate. The meet and confer letter asked for supplemental responses. Hil fit 4 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPI.AINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDER.oOo wm ID DAW BF WN wow RR Ye ee Ree RBNRRRBRPERBRBESSREVUARESHAS I. THE MOTION SHOULD BE DENIED - DEFENDANTS HAVE MINIMUM CONTACTS WITH CALIFORNIA, AND SPECIFICALLY WITH SAN FRANCISCO, Defendant Adam Burgess answered the interrogatories, stating under oath, that he owns the real property located at 479 Steiner St., San Francisco, CA 94117. This is the same property address where plaintiffs made numerous attempts to serve the Summons and Complaint. In addition to owning real property in the state of California, which appears to be a rental property (See Declaration of Christina Anne Fountain, Ex. 1), Adam Burgess’s answers to interrogatories (Attached to the Declaration of Christina Anne Fountain) state that he: Has a valid California Driver’s License. Owns and maintains his personal property at 479 Steiner Street, San Francisco, California. Maintains and uses a California Bank account at Bank of America Has filed California State tax returns annually for the past 10 years. Has filed U.S. Federal tax returns annually for the past 10 years. In 2010, he was in California for 28 days. Has a cellular telephone number with a San Francisco 415 area code. oe INA YF YL BM Has a Comcast landline telephone number with a San Francisco 415 area code. (See Declaration of Jose Ralph Espitia) 9. Owns a Ford vehicle registered in the state of California. (See Declaration of Jose Ralph Espitia) Defendant Lindsay Burgess’s answers to interrogatories (Attached to the Declaration of Christina Anne Fountain) also state that she: 1. Is married to Adam Burgess. 2. Owns and maintains her personal property at 479 Steiner Street, San Francisco, California. 3. Has a valid California Driver’s License. 5 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERoO me I DW RB WY HE NW NN ee BeRRaRBEBEEBSEDBABREBHRES 4. Maintains and uses a California bank account at Wells Fargo (Defendant failed to adequately answer the interrogatory and failed to provide the actual address of her California Wells Fargo bank account). 5. Maintains and uses a second California bank account at Bank of America. (Defendant failed to adequately answer the interrogatory and failed to provide the actual address of her California Bank of America bank account). 6. Lindsay Burgess was physically present in California in a. 2008 for at least 45 days; b. 2009 for at least 35 days; c. 2010- 11 days; (June 15-26,2010) ; d. 2011- 69 days (July I - September 1, 2011, December 8-13, 2011) e. 2012-13 days (to date) ( January 8-16, 2012; June 10-13, 2012. As shown in Plaintiffs’ previously filed opposition papers, declarations, and exhibits, Defendants advertised and marketed the Hotel to Plaintiffs within the State of California both verbally, in writing, and on their interactive website, during the months prior to December 7, 2008 for the sole purpose of receiving Plaintiffs’ payment for Plaintiffs’ complete use of the Hotel for their wedding and their California-resident wedding guests. All communications between Plaintiffs and Defendants regarding the wedding and Hotel occurred within the State of California and/or over a California area code telephone. Plaintiffs paid, and Defendants received payments, for the Hotel accommodations all within the State of California. Plaintiffs previously informed the court that defendants operate an interactive website in order to advertise the Hotel to California residents such as Plaintiffs and their California -resident wedding guests. The website is www.playafiesta.com and contains numerous interactive features, which allow California residents such as Plaintiffs and their wedding guests to make and pay for reservations at Defendants’ Hotel." Moreover, defendants also communicated with all of Plaintiffs’ California-resident "Tn order to avoid repetition, Plaintiffs refer the Court to Plaintiffs’ previously filed opposition , which provides additional information regarding the interactive nature of Defendants’ website for their Hotel. 6 . PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDER.Cm YN A HW FB wWN 10 family and friends in accepting their payments and reservations for a one week stay at Defendants’ Hotel. Plaintiffs’ family and friends knew of the Hotel only through communications they received in California. , Defendants admit they own real property in San Francisco. Regular mail sent to Defendants San Francisco address was never returned, which shows they received the mail. (See, Declaration of Jose Ralph Espitia.) Defendants maintain a San Francisco telephone number, which they used numerous times to communicate with Plaintiffs. Adam Burgess also has a landline telephone number with a 415 area code through the telephone service provider COMCAST. (See, Declaration of Jose Ralph Espitia.) | Plaintiffs properly requested service by publication after making numerous and extensive unsuccessful attempts to serve Defendants. (See, the previously file Fountain Decl. fff 2-13) Code of Civ. P. § 415.50. Public records indicate that Defendants own the real property located at 479 Steiner Street and reside at 479 Steiner Street, #7, San Francisco, California 94117. As shown in Plaintiffs’ affidavits, Defendants informed Plaintiffs that Defendants reside in San Francisco, California. Plaintiffs relied upon Defendants’ representations about being California residents. Plaintiffs believed they were dealing with persons who were California residents, just as Plaintiffs-are California residents. Plaintiffs called Defendants to, and Defendants called plaintiffs from, the 415 area code telephone number. On February 22, 2012, the Court granted Plaintiffs’ application for service by publication. As stated in Plaintiffs’ previously filed opposition to this motion, Plaintiffs properly ran publication notices and timely filed their proof of service by publication? The service was successful, in that Defendants are now attempting to make this Honorable court believe that Defendants do not have minimum contacts| with California. 1. Personal Jurisdiction Is Proper Because Defendants Are Domiciled In The State Of California. The additional information obtained by plaintiffs only serves to further cement the fact that Defendants have the required “minimum” contacts with California. Plaintiffs have provided the Court with more than sufficient evidence to show that defendants intend to continue their domicile and * Plaintiffs again respectfully request the Court to refer to Plaintiffs’ previously filed briefs, declarations, and exhibits so as to avoid duplication and repetition in this supplemental opposition. 7 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF| SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERoe WA nH FY NH nN VN N wR RM eB Se Se ee ee me ee pe PRR SERPS SOR ADAA RH NK ST contacts with the State of California. It is undisputed that Defendants have the sufficient contacts with California for this Court to maintain jurisdiction over defendants in this action. Persons domiciled within the state of California when an action is commenced are subject to personal jurisdiction of local courts even if service of process is made outside the state. Milliken v. Meyer (1940) 311 U.S. 457, 462; In Re Marriage of Tucker (1991) 226 Cal. App. 3d. 1258-1259. Once a domicile is established it is presumed to continue until a new domicile is established. Jd. All of Defendants real property, personal property, bank accounts, drivers’ licenses, and vehicles are in California. Plaintiffs suspect Defendants are using their extended stays in Mexico as an unmeritorious manner in which to claim this court does not have jurisdiction over defendants. But the evidence shows that Defendants intend to continue their domicile in California, and Defendants have made no showing that they intend to change their actual domicile or citizenship from California to Mexico. 2, Even If Defendants Were Not Domiciled Within the State of California, Defendants have Sufficient Minimum Contacts To Justify Assertion of Jurisdictions “California's long-arm statute authorizes California courts to exercise jurisdiction on any basis not inconsistent with the Constitution of the United States or the Constitution of California. (Code Civ. Proc., § 410.10.) A state court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate “ ‘traditional notions of fair play and substantial justice.’ Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4" 434, 444 (quoting Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316). In other words, the exercise of jurisdiction must be reasonable. Cornelison v. Chaney (1976) 16 Cal.3d 143, 147; Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 714. Plaintiffs again refer to the case of Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal. gh 1054, in which the California Supreme Court found that advertising and obtaining clients in the State of California was sufficient to establish jurisdiction. Based on defendants’ advertising into California and that they obtained customers from California, the High Court found the defendants had sufficient 8 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERCe QW Dw BY NY MW ON RY NY NNN BS ee ee ee Be Be RBekR&R BSS Ge IAAHDE HH HS contacts with California to make specific personal jurisdiction appropriate and that these contacts were related to the underlying cause of action. fd. Just like Defendants here, the hotels in Snowey maintained an Internet Web site and toll-free phone number where visitors or callers may obtain room quotes and make reservations. The court further noted that defendants’ online website established purposeful availment based on its level of interactivity and in the manner it targeted CA residents. Here, the exercise of jurisdiction in the state of California is reasonable: (1) Defendants maintain an interactive website, which Plaintiff's used within the State of California to access information and communicate with Defendants about the resort property; (2) Defendants sent advertising materials about the resort property to Plaintiff's in California; (3) the before-mentioned website directed Plaintiffs to a California based telephone number; (4) Defendants communicated with Plaintiffs on multiple occasions regarding the resort property, reservations, the terms of the contract, and payment using the California based telephone number; (5) Plaintiffs believe and are informed that payment was made and received within the state of California; (6) Plaintiffs were told by Defendants that they reside within the state of California and only go to Mexico for part of the year; (7) Defendants own real and personal property in the state of California. TL CONCLUSION WHEREFORE, Plaintiffs request that Defendants motion be denied, in its entirety, and that Defendants be ordered to file and serve an appropriate response to the Complaint within 10 days. Respectfully submitted, "REC E CHRISTINA ANNEEGOUNTAIN Attomey for Plaintiffs FRANK ALIOTO & KRISTEN ALIOTO 9 PLAINTIEES’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDERCc me YD AN RF WN | wow N NN RN NH YY Se Se ee Be eB eee RBAXa a Fo He FSF SoC WMO IN DHA BwWw YH KH PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE lam a resident of the county aforesaid: I am over the age of eighteen years and not a party to the within entitled action: my business address is 100 Bayview Circle, Suite 5600, Newport Beach, California 92660. On August 30, 2012 I served the within PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OFJOSE RALPH ESPITIA; [PROPOSED] ORDER on interested parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail in Newport Beach, California addressed as follows: SEE ATTACHED SERVICE LIST BY REGULAR MAIL: I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with US Postal Service on that same day with postage thereon fully prepaid at Newport Beach, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. x BY FEDERAL EXPRESS/UPS OVERNIGHT DELIVERY SERVICE: Said documents were delivered to an authorized courier or driver authorized by the express service carrier to receive documents with delivery fees paid or provided for. BY FACSIMILE: Said documents were transmitted by facsimile transmission and the transmission was reported as complete and without error. BY E-MAIL: Said documents were transmitted by electronic mail transmission and the transmission was reported as complete and without error. BY PERSONAL SERVICE: Said documents were personally delivered by: [] leaving copies at the attorney’s office, in an envelope or package clearly labeled to identify the attorney being served; [ ] with a receptionist or, with a person having charge thereof, [ ] in a conspicuous place in the office between the hours of 9 a.m. and 5 p.m. [] by leaving copies at the individual's residence with some person of not less than 18 years of age; [] in a conspicuous place in between the hours of 8 in the moming and 6 p.m. I declare, under penalty of perjury unger the laws of the State of Galifornia that the foregoing is true and correct. Executed on August 30, 2012 at, eft’Beach, ftalifornia. 10 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDER.Co ta DH FY YH = yb N NY NY YN wD Se oe Se RBRRRRERBRES SkRBA DARE K SE SD SERVICE LIST Bradley Jameson PHILLIPS, SPALLAS & ANGSTADT, LLP Three Embarcadero Center, Ste. 550 San Francisco, CA 94111 Telephone: 415.278.9400 Facsimile 415.278.9411 il PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO MOTION BY DEFENDANTS TO QUASH SERVICE OF SUMMONS & COMPLAINT; DECLARATION OF CHRISTINA ANNE FOUNTAIN; DECLARATION OF JOSE RALPH ESPITIA; [PROPOSED] ORDER