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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
May-18-2012 3:56 pm
Case Number: CGC-11-509638
Filing Date: May-18-2012 3:45
Filed by: CAROL BALISTRERI
Juke Box: 001 Image: 03622043
MOTION (CIVIL GENERIC)
FRANK ALIOTO et al VS. ADAM BURGESS et al
001003622043
Instructions:
Please place this sheet on top of the document to be scanned.SAUINASD Lavaciio WA) LSE:
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Bradley J. Jameson — 213052
PHILLIPS, SPALLAS & ANGSTADT LLP ve __E T L E ra
“sl,
Three Embarcadero Center, Suite 550 County Pee of Califo
San Francisco, CA 94111
Telephone: (415) 278-9400 MAY 1 8 2012
Facsimile: (415) 278-9411
CLERIC i
Attorneys Specially Appearing for Defendants By- OF THE oust Gy
ADAM BURGESS; LINDSAY BURGESS sk
Deputy d
And PLAYA FIESTA BEACHCLUB & HOTEL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO,
CASE NO: CGC-11-509638
FRANK ALIOTO AND KRISTEN ALIOTO,
SPECIALLY APPEARING
DEFENDANTS’ NOTICE OF MOTION
AND MOTION TO QUASH SERVICE OF
SUMMONS AND COMPLAINT FOR
IMPROPER SERVICE AND FOR LACK
OF PERSONAL JURISDICTION
Plaintiffs,
vs.
ADAM BURGESS, LINDSAY BURGESS,
Individually & dba PLAYA FIESTA
BEACHCLUB & HOTEL; PLAYA FIESTA
BEACHCLUB, A BUSINESS ENTITY, FORM
UNKNOWN & DOES 1 TO 100,
Date: June 13, 2012
Time: 9:30 a.m.
Location: Dept. 302
Defendants. Hon. Harold E. Kahn
TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on June 13, 2012, at 9:30 a.m. in Department 302 of the
above-entitled court located at 400 McAllister Street, San Francisco, California, the specially
appearing defendants in the above-captioned matter will and hereby do move this Court under
Code of Civil Procedure section 418.10, et.seq. as follows:
(a) For an order to quash service by publication of specially appearing defendants ADAM
BURGESS and LINDSAY BURGESS; and
(b) For an order to quash service of the summons to defendants ADAM BURGESS and
LINDSAY BURGESS on the ground of lack of jurisdiction of the court over them.
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This Motion is based upon this notice, the Memorandum of Points. and Authorities, the
Declaration of ADAM BURGESS, the Declaration of LINDSAY BURGESS, the Declaration of
Bradley J. Jameson, the Court's files and records herein, any and all exhibits produced during the
pleading stages of this motion, supplemental pleadings and exhibits, and all oral and
documentary evidence, if any, produced at the hearing on this motion.
MEMORANDUM OF POINTS AND AUTHORITIES
This action stems from a 2008 injury which took place in Puerto Vallarta, Jalisco, Mexico,
while plaintiffs were enjoying their wedding at the destination resort hotel they sought out for that
purpose. Specially appearing defendants are former California residents who relocated to Mexico
in 2002 and 2005 respectively, and have chosen to make Mexico their home, with no plans to
leave either their home or their business to relocate from Mexico.
Plaintiffs decided not to pursue their legal remedy in Jalisco, Mexico; instead opting to file
their complaint for damages in Los Angeles Superior Court just days before the expiration of the
statute of limitations. Plaintiffs have engaged in a blatant effort to ‘forum shop,’ seeking to file in a
jurisdiction in which they believe they will receive the greatest chance for pecuniary gain.
The exercise of jurisdiction over the defendants in this personal injury case, where the
accident occurred in Mexico, the witnesses and staff live in Mexico, the facility where the injury
occurred is located in Mexico and subject to Mexican building codes and regulations would not
comport with traditional notions of fair play and substantial justice. As a result, defendants have
specially appeared to file this motion to quash service of the summons and complaint due to
improper service by publication and lack of personal jurisdiction.
PROCEDURAL HISTORY
FRANK ALIOTO and KRISTEN ALIOTO (“PLAINTIFFS”) have filed a complaint for
personal injury asserting causes of action for general negligence and premises liability, arising
from an incident which took place in Puerto Vallarta, in the State of Jalisco, Mexico on December
7, 2008. Plaintiffs, who according to their complaint are residents of Redondo Beach, California,
originally filed their complaint against all defendants in Los Angeles County Superior Court on
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December 3, 2010. Although PLAINTIFFS’ complaint contains a general assertion that specially
‘appearing defendants ADAM BURGESS and LINDSAY BURGESS (“DEFENDANTS”) are
residents of the State of California, they offer no further details concerning the DEFENDANTS’
alleged residency. Additionally, the complaint offers no venue, residency or domicile allegations
concerning specially appearing defendant PLAYA FIESTA BEACHCLUB & HOTEL, except that
the complaint at page 4, paragraph GN-1, admits that the Playa Fiesta Beachclub & Hotel is
located at Carrertera a Barra de Navidad 5km, Puerto Vallarta, Jalisco, Mexico.
The court in Los Angeles County set this matter for an Order to Show Cause hearing due
to PLAINTIFFS’ failure to file any proof of service for the summons and complaint. (See
paragraph 4 of Declaration of Bradley J. Jameson in Support of Defendants’ Motion to Quash “B.
Jameson Declaration”.) That hearing was held on February 14, 2011, at which time the court set
the matter for another Order to Show Cause hearing concerning why the case should not be
dismissed because it was filed in an improper venue. Following that hearing, held on March 16,
2011, the court agreed to transfer the case to San Francisco Superior Court, rather than dismiss
the action. (See paragraph 5 of B. Jameson Declaration.) As a result, the case was transferred to
San Francisco Superior Court on March 23, 2011.
Following numerous hearings and case management conferences, plaintiffs finally
submitted an application for an order allowing service by publication to defendants ADAM
BURGESS and LINDSAY BURGESS. There is no such order as to defendant PLAYA FIESTA
BEACHCLUB & HOTEL and plaintiffs have made no effort to serve this defendant by publication.
To date there is no proof of service on file for this defendant. (See paragraph 6 of B. Jameson
Declaration.) PLAINTIFFS claim they accomplished service to defendants ADAM BURGESS and
LINDSAY BURGESS by publication in the San Francisco Examiner on April 18, 2012. (See
plaintiffs’ proof of service attached as Exhibit 7 to B. Jameson Declaration.) This motion to quash
service of the summons and complaint due to improper service by publication and lack of
personal jurisdiction is the result.
FACTUAL BACKGROUND
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I Defendants Reside in Puerto Vallarta, Mexico
Defendant ADAM BURGESS is the owner and operator of the Playa Fiesta Beachclub &
Hotel, where he lives and works with his wife defendant LINDSAY BURGESS. He purchased the
property, now known as the Playa Fiesta Beachclub & Hotel, in 2002 and began his business
there. (See paragraph 3 of Declaration of Adam Burgess in Support of Defendants’ Motion to
Quash — “ADAM BURGESS DECLARATION”). Mr. Burgess is from San Francisco and
previously resided there until 2002 when he moved to Puerto Vallarta, Jalisco, Mexico to run his
business, a 21 room destination hotel located on the beach in Puerto Vallarta. (See paragraph 4
ADAM BURGESS DECLARATION.) Mr. Burgess has lived in Mexico since then, and has no
plans to permanently relocate back to the United States.
Defendant LINDSAY BURGESS joined Mr. Burgess in Mexico in 2005 and has resided
there with him ever since. She too considers Mexico her home and has no plans to leave the
Mexican business or permanently relocate back to the United States. (See paragraph 3 of
Declaration of Lindsay Burgess in Support of Defendants’ Motion to Quash — “LINDSAY
BURGESS DECLARATION’).
Beginning in 2005, and continuing through the present, DEFENDANTS have lived
together in Puerto Vallarta, Jalisco, Mexico, they consider it their home and plan to continue living
in Mexico indefinitely. (See Paragraph 5 of ADAM BURGESS DECLARATION.) They continue to
maintain their residence in Puerto Vallarta, Jalisco, Mexico, where they have been domiciled
since 2002 and 2005, respectively. (See Paragraph 6 of ADAM BURGESS DECLARATION.)
I. Plaintiffs Know That Defendants Reside in Puerto Vallarta, Mexico
Contrary to PLAINTIFFS’ assertions contained in their various court filings, including their
complaint, declarations, and case management conference statements, they were well aware that
DEFENDANTS live in Mexico when they filed their complaint against them. DEFENDANTS had
multiple discussions with PLAINTIFFS, both while making arrangements for their wedding
festivities and during the week before their wedding while they were on the property in Puerto
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Vallarta, in which DEFENDANTS informed PLAINTIFFS that they lived on-site at the hotel. (See
Paragraph 7 of ADAM BURGESS DECLARATION.)
Additionally, PLAINTIFFS concede that at the time they filed their complaint, they knew
DEFENDANTS were planning to remain in Mexico for a “prolonged period of time.” (See page 3
line 15 of PLAINTIFFS’ Memorandum of Points and Authorities in Response to Order to Show
Cause Why Action Should Not be Dismissed for Improper Venue, filed in Los Angeles County
Superior Court on March 9, 2011, attached as Exhibit “A” to B. Jameson Declaration.) While
PLAINTIFFS claim DEFENDANTS are merely “traveling abroad,” that is not the case.
DEFENDANTS have lived in Mexico for several years and have plans to remain in Mexico for the
foreseeable future, with no plans to return to California to live. (See Paragraph 8 of ADAM
BURGESS DECLARATION and Paragraph 4 of LINDSAY BURGESS DECLARATION.)
Furthermore, PLAINTIFFS know where to locate DEFENDANTS if they should wish to
serve them. PLAINTIFFS’ complaint states the address for the defendant PLAYA FIESTA
BEACHCLUB & HOTEL is “Carretera a Barra de Navidad 5km, Puerto Vallarta, Jalisco, Mexico.”
Additionally, PLAINTIFFS’ complaint states that defendants ADAM BURGESS and LINDSAY
BURGESS are “currently known to be the owners and operators of Defendant Playa Fiesta
Beachclub & Hotel.” (See paragraph 8 of Complaint, attached as Exhibit “B” to B. Jameson
Declaration.) Clearly, PLAINTIFFS know where they can serve DEFENDANTS with a copy of the
summons and complaint should they wish to do so.
Ml. Defendants Are Not Domiciled In San Francisco
PLAINTIFFS claim that DEFENDANTS reside in San Francisco, and claim to know the
exact location where they live. In fact, the declaration of PLAINTIFFS’ counsel dated February 4,
2011 states that DEFENDANTS are known to reside at 479 Steiner St., San Francisco, California.
Additionally, plaintiffs’ counsel claims to have hired a licensed process server to serve
DEFENDANTS with a copy of the summons and complaint in San Francisco. However, her
declaration also states that, despite knowledge of DEFENDANTS’ alleged residence address in
San Francisco, and numerous attempts to serve them at their alleged address, PLAINTIFFS have
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been unable to do so. (See Paragraphs 2 through 4 of the Declaration of Christina Anne Fountain
In Response to Order to Show Cause Re Service of Process;-dated February 4, 2011, attached
as Exhibit “C” to B. Jameson Declaration.)
The reason for PLAINTIFFS’ inability to personally serve DEFENDANTS in San Francisco
is that they do not reside in San Francisco. While defendant ADAM BURGESS does own the
property located at 479 Steiner Street in San Francisco, neither he nor his wife LINDSAY
BURGESS live there. (See paragraph 9 of ADAM BURGESS DECLARATION.) Additionally,
neither ADAM BURGESS nor LINDSAY BURGESS maintain a vehicle in California, nor do they
have any vehicles registered in the State of California. (See paragraph 10 of ADAM BURGESS
DECLARATION.)
Furthermore, defendant ADAM BURGESS has not been present in California at any time
since PLAINTIFFS filed their December 3, 2010 complaint in Los Angeles, and DEFENDANTS
have no knowledge of someone knocking on the door at the property on Steiner Street in an effort
to serve them, as alleged by PLAINTIFFS in support of their application for order allowing service
by publication. (See paragraph 11 of ADAM BURGESS DECLARATION and paragraph 5 of
LINDSAY BURGESS DECLARATION.)
ARGUMENT
Personal Jurisdiction over a nonresident defendant depends on the existence of
essentially two criteria: (1) a basis for jurisdiction due to defendant's minimum contacts with the
forum state, and (2) acquisition of jurisdiction by service of process in strict compliance with
requirements of service statutes (Code Civ. Proc. §§ 412.10 - 417.40). In response to a specially
appearing nonresident defendant under Code Civ. Proc. § 418.10, plaintiff must establish that
both criteria are met. Ziller Electronics Lab GmbH v. Superior Court (1988) 206 CA3d 1222, 1229.
Here, both criteria are lacking for specially appearing defendants ADAM BURGESS and
LINDSAY BURGESS, who will discuss PLAINTIFFS’ failure to follow strict compliance with the
statute for service of process first, and then address the lack of personal jurisdiction.
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|... Service by Publication is Not Proper Since Plaintiffs Know Where to Locate
Defendants
If the factual allegations offered in support are proved false, an order for publication based
thereon must be set aside, invalidating any default judgment obtained against the defendant.
Transamerica Title Ins. Co. v. Hendrix (1995) 34 CA4th 740, 746. In Transamerica, the affidavit
stated that defendant's address was “unknown” but plaintiff admittedly knew defendant had a post
office box in California at which it could be served by mail. If the party to be served resides or is
located outside California, the court may also order the summons to be published in an out-of-
state newspaper that is most likely to give notice. Cal. Code of Civil Proc. §415.50(b).
As set forth in their complaint, as well as the declarations of their counsel, PLAINTIFFS
know they can locate and serve defendants ADAM BURGESS and LINDSAY BURGESS at the
Playa Fiesta Beachclub & Hotel in Puerto Vallarta, Jalisco, Mexico at any time. Contrary to
PLAINTIFFS’ assertions, the reality is that DEFENDANTS do not reside in San Francisco and do
not live in the property owned by ADAM BURGESS on Steiner Street. This fact was asserted by
PLAINTIFFS in declarations supporting their application for an order to serve DEFENDANTS by
publication. However, PLAINTIFFS’ declarations are false, as demonstrated by their inability to
serve either Mr. Burgess or Mrs. Burgess in San Francisco, despite the passage of nearly 18
months since the filing of their complaint and numerous attempts to serve them at that location. If
in fact DEFENDANTS reside in San Francisco, one would expect any diligent effort to serve them
at that location would prove successful.
Although DEFENDANTS reside in a foreign country, they may still be served by personal
delivery. The issue for PLAINTIFFS, which they are seeking to avoid by insisting on the fiction
that DEFENDANTS reside in San Francisco when they in fact live in Mexico, is that California
courts may not exercise jurisdiction in violation of an international treaty. Volkswagenwerk
Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699. Failure to comply with the Hague
Convention procedures voids the service, even though it was made in compliance with California
law, and even though the defendant had actual notice of the lawsuit. Kott at 1136.
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PLAINTIFFS could have followed procedures for service of DEFENDANTS in Mexico
through the Hague Convention or the Inter-American Convention on Letters Rogatory, but have
failed to comply with those rules by personally serving defendants; despite their knowledge of
DEFENDANTS specific address in Mexico. It appears PLAINTIFFS reasons for refusing to
personally serve DEFENDANTS in Mexico are to avoid the necessary admission that they were
only successful in personally serving them at a location outside of California.
Ml. Defendants Are Not Subject To Personal Jurisdiction in California
Due process permits state courts to exercise personal jurisdiction over nonresidents who
have “minimum contacts” with the forum state. “Minimum contacts” means the relationship
between the nonresident and the forum state is such that the exercise of jurisdiction does not
offend “traditional notions of fair play and substantial justice” under the U.S. Constitution's
Fourteenth Amendment Due Process Clause. /nternational Shoe Co. v. Washington (1945) 326
US 310, 316.
A. The Burden of Proof is on the Plaintiffs to Show ‘Minimum Contacts’
Although DEFENDANTS are the moving parties, the burden of proof is on the
PLAINTIFFS: “(W)hen jurisdiction is challenged by a nonresident defendant, the burden of proof
is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the
forum state to justify imposition of personal jurisdiction.” Elkman v. National States Ins. Co. (2009)
173 CA4th 1305,1313. The burden is on the plaintiff to demonstrate by a preponderance of the
evidence that all jurisdictional criteria are met. Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh
Scenic Studios) (1988) 206 CA3d 1222, 1232.
B. Defendant Lindsay Burgess Does not Have Sufficient Minimum Contacts
The mere fact of past residency fails to provide sufficient contacts of such nature and
quality to entertain personal jurisdiction over a defendant consistent with traditional notions of fair
play and substantial justice. Muckle v. Superior Court (2002) 102 CA4th 218, 225-231. ‘Domicile’
is the place where one resides with the intent to remain indefinitely. De Young v. De Young (1946)
27 Cal.2d 521, 524.
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Defendant LINDSAY BURGESS does not reside in California, and since 2005 has made
her domicile in Puerto Vallarta, Jalisco, Mexico with her husband. (See paragraph 6 of LINDSAY
BURGESS DECLARATION.) Additionally, Mrs. Burgess does not own any real property,
maintain a vehicle, or have a vehicle registered in the State of California. (See paragraph 7 of
LINDSAY BURGESS DECLARATION.) Defendant LINDSAY BURGESS lives in Mexico with her
husband, where she intends to live indefinitely. (See paragraph 8 of LINDSAY BURGESS
DECLARATION.) Accordingly, Mrs. Burgess does not have sufficient minimum contacts with the
State of California such that the State may exercise personal jurisdiction over her and force her to
appear and answer PLAINTIFFS’ complaint. Such exercise of jurisdiction would violate traditional
notions of fair play and substantial justice.
Cc. Defendant Adam Burgess Does not Have Sufficient Minimum Contacts
The presence of real property alone, where that property is not in any way related to
plaintiffs cause of action against defendant, will not support the State’s exercise of jurisdiction
over the defendant. Shaffer v. Heitner (1977) 433 US 186, 208-209.
Defendant ADAM BURGESS admittedly owns real property in San Francisco. However,
that property cannot serve as the basis for PLAINTIFFS’ exercise of jurisdiction over him. Mr.
Burgess has lived in Puerto Vallarta, Jalisco, Mexico since 2002, and intends to continue living
there indefinitely. (See paragraph 12 of ADAM BURGESS DECLARATION.) The exercise of
jurisdiction over Mr. Burgess in this personal injury case, where the accident occurred in Mexico,
the witnesses and staff reside in Mexico, the facility where the injury occurred is located in Mexico
and subject to Mexican building codes and regulations, and where the DEFENDANTS’ insurance
company, a potential cross-defendant in this action, is domiciled, would not comport with any
traditional notion of fair play and substantial justice. The mere fact that Mr. Burgess may own a
building in San Francisco that has absolutely no nexus with the facts underlying PLAINTIFFS’
complaint, should not and cannot serve as the basis for the exercise of jurisdiction over him in this
case.
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASHOo oN DW RB WN
NN NMYN NNN NN BS BP FP BP BOR PB BP Bp eB
ou ansBK BN FS BDO ODN DAH BWNH FO
WM Specific Jurisdiction Does Not Apply In This Case
When a nonresident defendant's activities in the forum are riot so pervasive as to justify
the exercise of general jurisdiction over him or her, jurisdiction depends on the quality and nature
of his or her activity in the forum in relation to a particular cause of action; in such situation, the
cause of action must arise out of an act done or transaction consummated in the forum. Burger
King Corp. v. Rudzewicz (1985) 471 US 462, 474-475.
PLAINTIFFS’ complaint alleges causes of action for general negligence and premises
liability only, seeking damages for personal injury stemming from an incident which took place on
December 7, 2008 at the Playa Fiesta Beachclub & Hotel located in Puerto Vallarta, Jalisco,
Mexico. The PLAINTIFFS’ action against defendants ADAM BURGESS and LINDSAY
BURGESS cannot reasonably be said to arise out of any alleged actions performed by
DEFENDANTS within California. On the contrary, to the extent this Court is to exercise
jurisdiction over DEFENDANTS, the basis for that jurisdiction must be ‘general’ as opposed to
‘specific,’ and is not justified in this case.
CONCLUSION
Defendants do not reside in San Francisco, do not reside in California, and do not have
sufficient ‘minimum contacts’ with California to justify this Court's exercise of jurisdiction over
them. Since the injury for which PLAINTIFFS seek damages took place in Mexico, where the
witnesses, staff and subject property are located, the exercise of specific jurisdiction does not lie
in this case. The PLAINTIFFS should not be rewarded for their effort to shop for a forum they
believe will be beneficial to their claim, or for asserting “factual” information in declarations that, at
best, they lack sufficient information to assert and is nothing more than a hopeful representation
or guess.
Dated: May 18, 2012 PHILLIPS, SPALLAS & ANGSTADT LLP
By: £ de se
radley Jameson
Attorneys for Defendants
ADAM BURGESS, LINDSAY BURGESS, and
PLAYA FIESTA BEACHCLUB & HOTEL
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-18-2012 3:56 pm Case Number: CGC-11-509638 Filing Date: May-18-2012 3:45 Filed by: CAROL BALISTRERI Juke Box: 001 Image: 03622043 MOTION (CIVIL GENERIC) FRANK ALIOTO et al VS. ADAM BURGESS et al 001003622043 Instructions: Please place this sheet on top of the document to be scanned.SAUINASD Lavaciio WA) LSE: (s] Gel, 14 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bradley J. Jameson — 213052 PHILLIPS, SPALLAS & ANGSTADT LLP ve __E T L E ra “sl, Three Embarcadero Center, Suite 550 County Pee of Califo San Francisco, CA 94111 Telephone: (415) 278-9400 MAY 1 8 2012 Facsimile: (415) 278-9411 CLERIC i Attorneys Specially Appearing for Defendants By- OF THE oust Gy ADAM BURGESS; LINDSAY BURGESS sk Deputy d And PLAYA FIESTA BEACHCLUB & HOTEL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO, CASE NO: CGC-11-509638 FRANK ALIOTO AND KRISTEN ALIOTO, SPECIALLY APPEARING DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT FOR IMPROPER SERVICE AND FOR LACK OF PERSONAL JURISDICTION Plaintiffs, vs. ADAM BURGESS, LINDSAY BURGESS, Individually & dba PLAYA FIESTA BEACHCLUB & HOTEL; PLAYA FIESTA BEACHCLUB, A BUSINESS ENTITY, FORM UNKNOWN & DOES 1 TO 100, Date: June 13, 2012 Time: 9:30 a.m. Location: Dept. 302 Defendants. Hon. Harold E. Kahn TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 13, 2012, at 9:30 a.m. in Department 302 of the above-entitled court located at 400 McAllister Street, San Francisco, California, the specially appearing defendants in the above-captioned matter will and hereby do move this Court under Code of Civil Procedure section 418.10, et.seq. as follows: (a) For an order to quash service by publication of specially appearing defendants ADAM BURGESS and LINDSAY BURGESS; and (b) For an order to quash service of the summons to defendants ADAM BURGESS and LINDSAY BURGESS on the ground of lack of jurisdiction of the court over them. PAGE 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASHQo a 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Motion is based upon this notice, the Memorandum of Points. and Authorities, the Declaration of ADAM BURGESS, the Declaration of LINDSAY BURGESS, the Declaration of Bradley J. Jameson, the Court's files and records herein, any and all exhibits produced during the pleading stages of this motion, supplemental pleadings and exhibits, and all oral and documentary evidence, if any, produced at the hearing on this motion. MEMORANDUM OF POINTS AND AUTHORITIES This action stems from a 2008 injury which took place in Puerto Vallarta, Jalisco, Mexico, while plaintiffs were enjoying their wedding at the destination resort hotel they sought out for that purpose. Specially appearing defendants are former California residents who relocated to Mexico in 2002 and 2005 respectively, and have chosen to make Mexico their home, with no plans to leave either their home or their business to relocate from Mexico. Plaintiffs decided not to pursue their legal remedy in Jalisco, Mexico; instead opting to file their complaint for damages in Los Angeles Superior Court just days before the expiration of the statute of limitations. Plaintiffs have engaged in a blatant effort to ‘forum shop,’ seeking to file in a jurisdiction in which they believe they will receive the greatest chance for pecuniary gain. The exercise of jurisdiction over the defendants in this personal injury case, where the accident occurred in Mexico, the witnesses and staff live in Mexico, the facility where the injury occurred is located in Mexico and subject to Mexican building codes and regulations would not comport with traditional notions of fair play and substantial justice. As a result, defendants have specially appeared to file this motion to quash service of the summons and complaint due to improper service by publication and lack of personal jurisdiction. PROCEDURAL HISTORY FRANK ALIOTO and KRISTEN ALIOTO (“PLAINTIFFS”) have filed a complaint for personal injury asserting causes of action for general negligence and premises liability, arising from an incident which took place in Puerto Vallarta, in the State of Jalisco, Mexico on December 7, 2008. Plaintiffs, who according to their complaint are residents of Redondo Beach, California, originally filed their complaint against all defendants in Los Angeles County Superior Court on PAGE 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH10 "1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 December 3, 2010. Although PLAINTIFFS’ complaint contains a general assertion that specially ‘appearing defendants ADAM BURGESS and LINDSAY BURGESS (“DEFENDANTS”) are residents of the State of California, they offer no further details concerning the DEFENDANTS’ alleged residency. Additionally, the complaint offers no venue, residency or domicile allegations concerning specially appearing defendant PLAYA FIESTA BEACHCLUB & HOTEL, except that the complaint at page 4, paragraph GN-1, admits that the Playa Fiesta Beachclub & Hotel is located at Carrertera a Barra de Navidad 5km, Puerto Vallarta, Jalisco, Mexico. The court in Los Angeles County set this matter for an Order to Show Cause hearing due to PLAINTIFFS’ failure to file any proof of service for the summons and complaint. (See paragraph 4 of Declaration of Bradley J. Jameson in Support of Defendants’ Motion to Quash “B. Jameson Declaration”.) That hearing was held on February 14, 2011, at which time the court set the matter for another Order to Show Cause hearing concerning why the case should not be dismissed because it was filed in an improper venue. Following that hearing, held on March 16, 2011, the court agreed to transfer the case to San Francisco Superior Court, rather than dismiss the action. (See paragraph 5 of B. Jameson Declaration.) As a result, the case was transferred to San Francisco Superior Court on March 23, 2011. Following numerous hearings and case management conferences, plaintiffs finally submitted an application for an order allowing service by publication to defendants ADAM BURGESS and LINDSAY BURGESS. There is no such order as to defendant PLAYA FIESTA BEACHCLUB & HOTEL and plaintiffs have made no effort to serve this defendant by publication. To date there is no proof of service on file for this defendant. (See paragraph 6 of B. Jameson Declaration.) PLAINTIFFS claim they accomplished service to defendants ADAM BURGESS and LINDSAY BURGESS by publication in the San Francisco Examiner on April 18, 2012. (See plaintiffs’ proof of service attached as Exhibit 7 to B. Jameson Declaration.) This motion to quash service of the summons and complaint due to improper service by publication and lack of personal jurisdiction is the result. FACTUAL BACKGROUND PAGE 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH10 1 12 13 14 15 16 17 18 19 20 24 22 23 24 25 26 27 28 I Defendants Reside in Puerto Vallarta, Mexico Defendant ADAM BURGESS is the owner and operator of the Playa Fiesta Beachclub & Hotel, where he lives and works with his wife defendant LINDSAY BURGESS. He purchased the property, now known as the Playa Fiesta Beachclub & Hotel, in 2002 and began his business there. (See paragraph 3 of Declaration of Adam Burgess in Support of Defendants’ Motion to Quash — “ADAM BURGESS DECLARATION”). Mr. Burgess is from San Francisco and previously resided there until 2002 when he moved to Puerto Vallarta, Jalisco, Mexico to run his business, a 21 room destination hotel located on the beach in Puerto Vallarta. (See paragraph 4 ADAM BURGESS DECLARATION.) Mr. Burgess has lived in Mexico since then, and has no plans to permanently relocate back to the United States. Defendant LINDSAY BURGESS joined Mr. Burgess in Mexico in 2005 and has resided there with him ever since. She too considers Mexico her home and has no plans to leave the Mexican business or permanently relocate back to the United States. (See paragraph 3 of Declaration of Lindsay Burgess in Support of Defendants’ Motion to Quash — “LINDSAY BURGESS DECLARATION’). Beginning in 2005, and continuing through the present, DEFENDANTS have lived together in Puerto Vallarta, Jalisco, Mexico, they consider it their home and plan to continue living in Mexico indefinitely. (See Paragraph 5 of ADAM BURGESS DECLARATION.) They continue to maintain their residence in Puerto Vallarta, Jalisco, Mexico, where they have been domiciled since 2002 and 2005, respectively. (See Paragraph 6 of ADAM BURGESS DECLARATION.) I. Plaintiffs Know That Defendants Reside in Puerto Vallarta, Mexico Contrary to PLAINTIFFS’ assertions contained in their various court filings, including their complaint, declarations, and case management conference statements, they were well aware that DEFENDANTS live in Mexico when they filed their complaint against them. DEFENDANTS had multiple discussions with PLAINTIFFS, both while making arrangements for their wedding festivities and during the week before their wedding while they were on the property in Puerto PAGE 4 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASHo fo N OD 10 "1 12 13 14 15 16 17 18 19 20 24 22 23 24 25 26 27 28 Vallarta, in which DEFENDANTS informed PLAINTIFFS that they lived on-site at the hotel. (See Paragraph 7 of ADAM BURGESS DECLARATION.) Additionally, PLAINTIFFS concede that at the time they filed their complaint, they knew DEFENDANTS were planning to remain in Mexico for a “prolonged period of time.” (See page 3 line 15 of PLAINTIFFS’ Memorandum of Points and Authorities in Response to Order to Show Cause Why Action Should Not be Dismissed for Improper Venue, filed in Los Angeles County Superior Court on March 9, 2011, attached as Exhibit “A” to B. Jameson Declaration.) While PLAINTIFFS claim DEFENDANTS are merely “traveling abroad,” that is not the case. DEFENDANTS have lived in Mexico for several years and have plans to remain in Mexico for the foreseeable future, with no plans to return to California to live. (See Paragraph 8 of ADAM BURGESS DECLARATION and Paragraph 4 of LINDSAY BURGESS DECLARATION.) Furthermore, PLAINTIFFS know where to locate DEFENDANTS if they should wish to serve them. PLAINTIFFS’ complaint states the address for the defendant PLAYA FIESTA BEACHCLUB & HOTEL is “Carretera a Barra de Navidad 5km, Puerto Vallarta, Jalisco, Mexico.” Additionally, PLAINTIFFS’ complaint states that defendants ADAM BURGESS and LINDSAY BURGESS are “currently known to be the owners and operators of Defendant Playa Fiesta Beachclub & Hotel.” (See paragraph 8 of Complaint, attached as Exhibit “B” to B. Jameson Declaration.) Clearly, PLAINTIFFS know where they can serve DEFENDANTS with a copy of the summons and complaint should they wish to do so. Ml. Defendants Are Not Domiciled In San Francisco PLAINTIFFS claim that DEFENDANTS reside in San Francisco, and claim to know the exact location where they live. In fact, the declaration of PLAINTIFFS’ counsel dated February 4, 2011 states that DEFENDANTS are known to reside at 479 Steiner St., San Francisco, California. Additionally, plaintiffs’ counsel claims to have hired a licensed process server to serve DEFENDANTS with a copy of the summons and complaint in San Francisco. However, her declaration also states that, despite knowledge of DEFENDANTS’ alleged residence address in San Francisco, and numerous attempts to serve them at their alleged address, PLAINTIFFS have PAGE 5 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASHhw a "1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 been unable to do so. (See Paragraphs 2 through 4 of the Declaration of Christina Anne Fountain In Response to Order to Show Cause Re Service of Process;-dated February 4, 2011, attached as Exhibit “C” to B. Jameson Declaration.) The reason for PLAINTIFFS’ inability to personally serve DEFENDANTS in San Francisco is that they do not reside in San Francisco. While defendant ADAM BURGESS does own the property located at 479 Steiner Street in San Francisco, neither he nor his wife LINDSAY BURGESS live there. (See paragraph 9 of ADAM BURGESS DECLARATION.) Additionally, neither ADAM BURGESS nor LINDSAY BURGESS maintain a vehicle in California, nor do they have any vehicles registered in the State of California. (See paragraph 10 of ADAM BURGESS DECLARATION.) Furthermore, defendant ADAM BURGESS has not been present in California at any time since PLAINTIFFS filed their December 3, 2010 complaint in Los Angeles, and DEFENDANTS have no knowledge of someone knocking on the door at the property on Steiner Street in an effort to serve them, as alleged by PLAINTIFFS in support of their application for order allowing service by publication. (See paragraph 11 of ADAM BURGESS DECLARATION and paragraph 5 of LINDSAY BURGESS DECLARATION.) ARGUMENT Personal Jurisdiction over a nonresident defendant depends on the existence of essentially two criteria: (1) a basis for jurisdiction due to defendant's minimum contacts with the forum state, and (2) acquisition of jurisdiction by service of process in strict compliance with requirements of service statutes (Code Civ. Proc. §§ 412.10 - 417.40). In response to a specially appearing nonresident defendant under Code Civ. Proc. § 418.10, plaintiff must establish that both criteria are met. Ziller Electronics Lab GmbH v. Superior Court (1988) 206 CA3d 1222, 1229. Here, both criteria are lacking for specially appearing defendants ADAM BURGESS and LINDSAY BURGESS, who will discuss PLAINTIFFS’ failure to follow strict compliance with the statute for service of process first, and then address the lack of personal jurisdiction. PAGE 6 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH14 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 |... Service by Publication is Not Proper Since Plaintiffs Know Where to Locate Defendants If the factual allegations offered in support are proved false, an order for publication based thereon must be set aside, invalidating any default judgment obtained against the defendant. Transamerica Title Ins. Co. v. Hendrix (1995) 34 CA4th 740, 746. In Transamerica, the affidavit stated that defendant's address was “unknown” but plaintiff admittedly knew defendant had a post office box in California at which it could be served by mail. If the party to be served resides or is located outside California, the court may also order the summons to be published in an out-of- state newspaper that is most likely to give notice. Cal. Code of Civil Proc. §415.50(b). As set forth in their complaint, as well as the declarations of their counsel, PLAINTIFFS know they can locate and serve defendants ADAM BURGESS and LINDSAY BURGESS at the Playa Fiesta Beachclub & Hotel in Puerto Vallarta, Jalisco, Mexico at any time. Contrary to PLAINTIFFS’ assertions, the reality is that DEFENDANTS do not reside in San Francisco and do not live in the property owned by ADAM BURGESS on Steiner Street. This fact was asserted by PLAINTIFFS in declarations supporting their application for an order to serve DEFENDANTS by publication. However, PLAINTIFFS’ declarations are false, as demonstrated by their inability to serve either Mr. Burgess or Mrs. Burgess in San Francisco, despite the passage of nearly 18 months since the filing of their complaint and numerous attempts to serve them at that location. If in fact DEFENDANTS reside in San Francisco, one would expect any diligent effort to serve them at that location would prove successful. Although DEFENDANTS reside in a foreign country, they may still be served by personal delivery. The issue for PLAINTIFFS, which they are seeking to avoid by insisting on the fiction that DEFENDANTS reside in San Francisco when they in fact live in Mexico, is that California courts may not exercise jurisdiction in violation of an international treaty. Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699. Failure to comply with the Hague Convention procedures voids the service, even though it was made in compliance with California law, and even though the defendant had actual notice of the lawsuit. Kott at 1136. PAGE 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS could have followed procedures for service of DEFENDANTS in Mexico through the Hague Convention or the Inter-American Convention on Letters Rogatory, but have failed to comply with those rules by personally serving defendants; despite their knowledge of DEFENDANTS specific address in Mexico. It appears PLAINTIFFS reasons for refusing to personally serve DEFENDANTS in Mexico are to avoid the necessary admission that they were only successful in personally serving them at a location outside of California. Ml. Defendants Are Not Subject To Personal Jurisdiction in California Due process permits state courts to exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state. “Minimum contacts” means the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice” under the U.S. Constitution's Fourteenth Amendment Due Process Clause. /nternational Shoe Co. v. Washington (1945) 326 US 310, 316. A. The Burden of Proof is on the Plaintiffs to Show ‘Minimum Contacts’ Although DEFENDANTS are the moving parties, the burden of proof is on the PLAINTIFFS: “(W)hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.” Elkman v. National States Ins. Co. (2009) 173 CA4th 1305,1313. The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios) (1988) 206 CA3d 1222, 1232. B. Defendant Lindsay Burgess Does not Have Sufficient Minimum Contacts The mere fact of past residency fails to provide sufficient contacts of such nature and quality to entertain personal jurisdiction over a defendant consistent with traditional notions of fair play and substantial justice. Muckle v. Superior Court (2002) 102 CA4th 218, 225-231. ‘Domicile’ is the place where one resides with the intent to remain indefinitely. De Young v. De Young (1946) 27 Cal.2d 521, 524. PAGE 8 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH"1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant LINDSAY BURGESS does not reside in California, and since 2005 has made her domicile in Puerto Vallarta, Jalisco, Mexico with her husband. (See paragraph 6 of LINDSAY BURGESS DECLARATION.) Additionally, Mrs. Burgess does not own any real property, maintain a vehicle, or have a vehicle registered in the State of California. (See paragraph 7 of LINDSAY BURGESS DECLARATION.) Defendant LINDSAY BURGESS lives in Mexico with her husband, where she intends to live indefinitely. (See paragraph 8 of LINDSAY BURGESS DECLARATION.) Accordingly, Mrs. Burgess does not have sufficient minimum contacts with the State of California such that the State may exercise personal jurisdiction over her and force her to appear and answer PLAINTIFFS’ complaint. Such exercise of jurisdiction would violate traditional notions of fair play and substantial justice. Cc. Defendant Adam Burgess Does not Have Sufficient Minimum Contacts The presence of real property alone, where that property is not in any way related to plaintiffs cause of action against defendant, will not support the State’s exercise of jurisdiction over the defendant. Shaffer v. Heitner (1977) 433 US 186, 208-209. Defendant ADAM BURGESS admittedly owns real property in San Francisco. However, that property cannot serve as the basis for PLAINTIFFS’ exercise of jurisdiction over him. Mr. Burgess has lived in Puerto Vallarta, Jalisco, Mexico since 2002, and intends to continue living there indefinitely. (See paragraph 12 of ADAM BURGESS DECLARATION.) The exercise of jurisdiction over Mr. Burgess in this personal injury case, where the accident occurred in Mexico, the witnesses and staff reside in Mexico, the facility where the injury occurred is located in Mexico and subject to Mexican building codes and regulations, and where the DEFENDANTS’ insurance company, a potential cross-defendant in this action, is domiciled, would not comport with any traditional notion of fair play and substantial justice. The mere fact that Mr. Burgess may own a building in San Francisco that has absolutely no nexus with the facts underlying PLAINTIFFS’ complaint, should not and cannot serve as the basis for the exercise of jurisdiction over him in this case. PAGE 9 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASHOo oN DW RB WN NN NMYN NNN NN BS BP FP BP BOR PB BP Bp eB ou ansBK BN FS BDO ODN DAH BWNH FO WM Specific Jurisdiction Does Not Apply In This Case When a nonresident defendant's activities in the forum are riot so pervasive as to justify the exercise of general jurisdiction over him or her, jurisdiction depends on the quality and nature of his or her activity in the forum in relation to a particular cause of action; in such situation, the cause of action must arise out of an act done or transaction consummated in the forum. Burger King Corp. v. Rudzewicz (1985) 471 US 462, 474-475. PLAINTIFFS’ complaint alleges causes of action for general negligence and premises liability only, seeking damages for personal injury stemming from an incident which took place on December 7, 2008 at the Playa Fiesta Beachclub & Hotel located in Puerto Vallarta, Jalisco, Mexico. The PLAINTIFFS’ action against defendants ADAM BURGESS and LINDSAY BURGESS cannot reasonably be said to arise out of any alleged actions performed by DEFENDANTS within California. On the contrary, to the extent this Court is to exercise jurisdiction over DEFENDANTS, the basis for that jurisdiction must be ‘general’ as opposed to ‘specific,’ and is not justified in this case. CONCLUSION Defendants do not reside in San Francisco, do not reside in California, and do not have sufficient ‘minimum contacts’ with California to justify this Court's exercise of jurisdiction over them. Since the injury for which PLAINTIFFS seek damages took place in Mexico, where the witnesses, staff and subject property are located, the exercise of specific jurisdiction does not lie in this case. The PLAINTIFFS should not be rewarded for their effort to shop for a forum they believe will be beneficial to their claim, or for asserting “factual” information in declarations that, at best, they lack sufficient information to assert and is nothing more than a hopeful representation or guess. Dated: May 18, 2012 PHILLIPS, SPALLAS & ANGSTADT LLP By: £ de se radley Jameson Attorneys for Defendants ADAM BURGESS, LINDSAY BURGESS, and PLAYA FIESTA BEACHCLUB & HOTEL PAGE 10 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH