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DAVID J. COOK, ESQ. (State Bar # 060859)
COOK COLLECTION ATTORNEYS
A PROFESSIONAL LAW CORPORATION
165 Fell Street, San Francisco, CA 94102 FILED
P.O. Box 270, San Francisco, CA 94104-0270 ‘ase
Telephone: (415) 989-4730 Superior Court of California
Facsimile: (415) 989-0491
Email: Cook@SqueezeBloodFromTumip.com 07/31/2018
File No. 57,619 BY: VANESSA WU
Deputy Clerk
Attorneys for Plaintiff ect
ALIGN TECHNOLOGY, INC.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
ALIGN TECHNOLOGY, INC., a ) CASE NO. CGC-17-561692
corporation, )
) DECLARATION OF DAVID J. COOK, ESQ.
Plaintiff, ) IN SUPPORT OF EX PARTE APPLICATION
) FOR ISSUANCE OF ORDER AUTHORIZING
vs, ) DISCOVERY [NOTICE OF TAKING
) DEPOSITION, REQUEST FOR PRODUCTION
NICOLE LAMBERT, an individual, ) OF DOCUMENTS, AND CONTINUANCE OF
) HEARING]
AND DOES I THROUGH X, AND )
EACH OF THEM, INCLUSIVE, )
) Date: August 1, 2018
Defendant. ) Time: 11:00 a.m.
} Dept.: 302
Judge: Harold E. Kahn
I, DAVID J. COOK, hereby declare and state as follows:
1. Iam one of the attorneys of record for Plaintiff in the above-entitled action, am duly
authorized to practice before all courts in the State of California, and am familiar with the facts
and circumstances in this action.
2. Plaintiff ALIGN TECHNOLOGY, INC. has obtained a Judgment on June 5, 2018 in the
total amount of $52,633.19, a true and correct copy of the JUDGMENT BY CLERK BY
DEFAULT is attached hereto marked Exhibit “A.” Defendant is a dentist and Plaintiff is entitled
to effectuate collection.
1
DECLARATION OF DAVID J. COOK, ESQ. [IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF
ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION
OF DOCUMENTS, AND CONTINUANCE OF HEARING)oe YN AH PF YW DN
Fete eee tee
RBRRRRBRESSe VAD ESS AS
3. On July 27", 2018 Declarant’s office was personally served with Notice of Motion and
Motion to Vacate Default Judgment and Dismiss Action for Lack of Personal Jurisdiction,
hereinafter “Motion.”
4. Declarant provided notice of this ex parte hearing at the hour of 8:34 a.m. and a copy of
the notice thereof is attached hereto marked Exhibit “B” and incorporated herein by reference.
5. Declarant attempted te resolve these issues by way of attached letter, a copy of which is
attached hereto marked Exhibit “C” and incorporated herein by reference.
6. After an email exchange, Daniel Frankston, the attorney for Dr. Lambert refused to
stipulate to jurisdictional discovery and requested a court hearing.
7. Declarant has been representing ALIGN in excess of ten (10) years.. Declarant
represented ALIGN in a case entitled Align Technology, Inc., v. Peter Rivoli, et al., Santa Clara
County Superior Court Case No. 109CV 154000. In that case the defendants filed a motion to
quash with jurisdictional grounds, a near duplicate motion as the motion filed here. Plaintiff
opposed and filed the attached Memorandum of Points and Authorities in Opposition to
Defendant’s Motion to Quash for Lack of Personal Jurisdiction marked Exhibit “D,” and
incorporated herein by reference, and the attached Declaration of Peter M Vadasz in Support of
Opposition to Defendant’s Motion to Quash for Lack of Personal Jurisdiction marked Exhibit
“E,” (without exhibits) and incorporated herein by reference. The court denied the motion to
quash, and a copy of the order denying the motion is attached hereto marked Exhibit “F,” and
incorporated herein by reference
8. Declarant personally sent the Rivoli Memorandum, Declaration, and Order to convince
Mr. Frankston that his motion is without merit on the basis that ALIGN had prevailed on identical
facts as raised by the Rivoli defendants, i.e. that they were located in New York. Declarant also
indicated in the email traffic that the parties entered into an agreement that has a forum selection
clause,
9. The purpose of this jurisdictional discovery is to demonstrate purpose availment, that
Dr. Lambert made multiple order of Aligners and retainers subject to ALIGN’s “terms and
2
DECLARATION OF DAVID J. COOK, ESQ. IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF —
ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION
OF DOCUMENTS, AND CONTINUANCE OF HEARING]oe NY DH RF WN =
BRRRRBRES SBA RDESEEAS
conditions,” that she subjected herself to the jurisdiction of the State of California, and that
otherwise this motion should be denied. In the face of the ex parte notice, Declarant has not been
contacted by adverse counsel.
I declare under penalty of perjury under the la
foregoing is true and correct.
Executed on July 31, 2018 at Sg
FAUSERS\DJCNEW\LAMBERT_¢
3
DECLARATION OF DAVID J. COOK, ESQ. IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF
ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION
OF DOCUMENTS, AND CONTINUANCE OF HEARING]EX TB COA D>ATTORNEY OR PARTY WITHOUT ATTORNEY (vame, sista bar number, and actions):
DAVID J, COOK, ESQ. SBN 060859
COK COLLECTION ATTORNEYS, PLC
165 Fell Street, San Francisco, CA 94102-5106
P.O. Box 270
San Francisco, CA 94104-0270
Tasproneno: 415 989 4730 FAXNO. (Opsoee 415 989 0491
EMAL ADDRESS (Opto: COOk@squeezebloodfromturnip.com
ATTORNEY FOR iene Plainti££ File #57,619
‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO X 5 2018
STREETADORESS. 400 McAllister Street JUN X 5 2
MAMLING ADORESS: Same
emvaozrcooe San Francisco, CA 94102 CLERK QF THE COURT
srnchwme: Unlimited Civil Jurisdiction BY
PLAINTIFF: ALIGN TECHNOLOGY, INC., a corporation
DEFENDANT:NICOLE LAMBERT, an individual :
JUDGMENT Peer
By Clerk Fy By Default (J After Court Trial CGC-17-561692
By Court ‘On Stipulation LJ Defendant did Not
Appear at Trial
1, Ge) BY DEFAULT en
a. Defendant was proparly served with a copy of the summons and complaint.
b. Cefendant falled to answer the complaint or appear and defend the action within the time allowed by law.
¢. Defendant's default was entered by the clerk upon plaintiff's application,
d. (J clerk's Judgment (Code Clv. Proc., § 685(2)). Defendant was sued only on a contract or judgment of a court of
this state for the recovery of money,
¢. Cx) Court sudgmont (Code Civ. Proc., § 685(b)). The court considered
(1) (J plaintiffs testimony and other evidence,
(2) Gc] plaintifts written declaration (Code Giv. Proc., § 585(d)).
2 (7) onsTIPULATION
8, Plaintiff and defendant agreed (stipulated) that e judgment be entered in this case, The court approved the stipulated
ludgment and
b the signed written stipulation was filed In the case.
c. (-) the stpulation wes stated in open court [—] the stipulation was stated on the record,
3, (] AFTER COURT TRIAL. The jury was walved. The court considered the evidence,
‘a. The case was tried on (date and time):
before (name of judicial officer):
D. Appearances by:
{[) Plaintiff (name each): [1 Plaintiffs attorney (name each):
WM (1)
@ 2)
) Continued on Attachment 3b,
(©) Defendant (name each): [1 _ Defendant's attomey (name each):
(1) (1)
@) @)
3) Continued on Attachment 3b.
¢. () Defendant did not appaar at tial. Defendant was properly served with notice of trial.
d. (2) A statement of decision (Code Cv. Proc. § 632) C_Jwesnot [J was requested.
‘Paget ot?
JUDGMENT (Code ef Chil Procedure, $5 555, S48me ° °
PLAINTIFF: ALIGN TECHNOLOGY, INC., a corporation ‘CASE NUMBER:
CGC-17-561692
DEFENDANT: NICOLE LAMBERT, an individual
JUDGMENT IS ENTERED AS FOLLOwsBy: [CX] THEcourT (Cx) THECLERK
4. [7] Stipulated Judgment. Judgment is entered according to the stipulation of the parties.
5. Parties, Judgment Is
a. CX) for plaintiff (name each) Align Technology, , [1] for cross-complainant (name esch):
Inc., a corporation
and against defendant (names): Nicole and against cross-defendant (name each):
Lambert, an individual
(5 Continued on Attachment 5a. (1 Continued on Attachment e.
b. [7] fordefendant (name each): ¢. [21 forcross-defendant (name each):
6. Amount.
2. Gc) Defendant named In item Sa ebove must c. [J Cross-defendant named in item Sc above must pay
pay plaintiff on the complaint: ¢rose-complainant on the cross-complaint:
47,772.23
3,193.96
1,000.00
667.00
. hv jansbe podipo on censal ¢. (2) cross-complainant to recelve nothing from
named in item Sb. crose-defendant named In tem 6d.
named In item 6b to recover C) Cross-defendant named In item 5d to recover
ae 0.00 pep $900
and attomey fees $ 0.00 and attorney fees $0.00
7. [£1 other (epscity):
ow: \S|16 o a a
UDCUL CFRCER
NEWTON LAM
Date: © Clerk, by, » Deputy
CLERK'S CERTIFICATE (Optional)
{ certify that this Is a true copy of the original judgment on file in the court.
Date:
Clark, by + Deputy
Page dot
‘BUD-100 [Now Jerussy JUDGMENTEXHIBIT “BRB”David J. Cook
From: David J. Cook {davidcook@cookcollectionattomeys. com)
Sent: Tuesday, July 31, 2018 8:34
To: ‘Sweet & Walker, P.C.'; a eiepsqueezebloodtrombumip. com!
Subject: RE: Our File 58138/ Nicole Lambert
Importance: High
Dear Mr. Frankston
We will be appearing as follows:
Date: August 1, 2018.
Time: 11:00 a.m.
Dept. 302
Purpose:
1. Issuance of order for jurisdictional discovery consisting of a deposition and document
request. The deposition will take place in NYC.
2. Continue motion for 60 days pending discovery.
Please advise if you will stipulate. We will serve you with papers when they are generated and | expect the same from
you.
Very truly yours,
David J. Cook _ - Zl EoEeeeee EEE EEE
From: Sweet & Walker, PC. [mailto:mail@sweetwalker.com]
Sent: Monday, July 30, 2018 11:14 AM
To: eb
Subject: Our File 58138/ Nicole Lambert
Mr. Cook,
1am in receipt of your 34 page facsimile of Friday evening in which you indicate that you will be seeking ex parte relief
tomorrow in Department 302 of the San Francisco Superior Court.
While | have not yet fully reviewed your facsimile, | am herein requesting that you furnish our office with any pleadings
you intend to submit in support of your application as soon as they are completed. Please email those to us as soon as
possible,
Daniel Frankston
Sweet & Walker, P.C.
P.O. Box 27558
San Francisco CA 94127
3: 10
415.334.1600
448.334.0855 (fax)
CONFIDENTIALITY NOTICE:
This email message is for the sole use of the intended recipient(s) and may contain confidential or legally privileged
information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient,
please contact the sender by reply email and destroy all copies of the original message.EXHIBIT “C?® COOK@COLLECTION ATTORNEYS®, PLC
ATTORNEYS AT LAW
165 FELL STREET TEL; (415) 989-4730
SAN FRANCISCO, CA 94102-5106 FAX: (415) 989-0491
MAIL:
P.O. BOX 270
SAN FRANCISCO, CA 94104-0270,
July 31, 2018
Via email and fax
Lorna Walker
Daniel Frankston
The Law Offices of Sweet & Walker, P.C.
2380 Junipero Serra Blvd., Suite B
Daly City, CA 94015
mail@sweetwalker.com
Fax No. (415) 334-0855
Re: Align technology, Inc., v. Nicole Lambert, et al.
San Francisco Superior Court Case No. CGC-18-561692
Ex Parte Hearing
Dear Mr. Frankston:
Your counteroffer is rejected outright. Either Dr. Lambert agrees to jurisdictional
discovery or she does not.
We are experienced in this area and know how to do a jurisdictional deposition.
We will not stipulate to any time limitation. A jurisdictional deposition entitles us to go
through all of Dr. Lambert’s activities, in which we can demonstrate that she agreed to a forum
selection clause and moreover, that her contact with California justifies jurisdiction.
I sent you the declaration of Peter Vadasz so you could examine for yourself the level of
detail. 1 sent you the memorandum of points and authorities which extensively cites sections of
the jurisdictional deposition of Peter Rivoli. These are painstakingly detailed depositions.
Either we have a deal which I proposed, or we do not. We are not going to continue these
motions but still be forced to show up in court to prove up our entitlement to jurisdictional
discovery.
I sent you multiple cases which justify jurisdictional discovery.
We will not continue tomorrow’s ex parte hearing. Someone else from your office will
have to appear or you can appear by CourtCall.
Cook@CookCollectionAttomeys.com
CollectionLawReporter.com
CookCollectionAttomeys.comJuly 31, 2018
Via email and fax
Lorna Walker
Daniel Frankston
The Law Offices of Sweet & Walker, P.C.
2380 Junipero Serra Blvd., Suite B
Daly City, CA 94015
mail@sweetwalker.com
Fax No. (415) 334-0855
Re: Align technology, Inc., v. Nicole Lambert, et al.
San Francisco Superior Court Case No. CGC-18-561692
Ex Parte Hearing
Page 2
However you wish to manage this matter, you need to communicate with me by no later
than 1:00 p.m. today. } have a number of people at Align Technology, Inc., who are awaiting my
hether-to provide a detailed declaration to support jurisdictional discovery.TRANSMISSION VERIFICATION REPORT
TIME : 07/31/2818 12:01
NAME:
FAX: 4159890491
TEL: 4159894730
SER.# : BROH2389851
DATE, TIME 87/31 12:00
FAX NO. /NAME 14153340855
DURATION 0: 8: 21
aK
STANDARD
ECM
COOK®COLLECTION ATTORNEYS®, PLC
ATTORNEYS AT LAW
165FELL STREET TEL: (415) 989-4730
SAN FRANCISCO, CA 94192-5106 FAX: (445) 989-0491
MAIL:
P.O. BOX 270
SAN FRANCISCO, CA 94104-0270
July 31, 2018
Via email and fax
Loma Walker
Daniel Frankston.
The Law Offices of Sweet & Walker, P.C,
2380 Junipero Serra Blvd., Suite B
Daly City, CA 94015
mail@sweetwalker.com
Fax No. (415) 334-0855
Re: Align technology, Inc., v. Nicole Lambert, et al.
San Francisco Superior Court Case No. CGC-18-561692
Ex Parte Hearing
Dear Mr. Frankston:
Your counteroffer is rejected outright. Either Dr. Lambert agrees to jurisdictional
discovery or she does not.
We are experienced in this area and know how to do a jurisdictional deposition.
We will not stipulate to any time limitation. A jurisdictional deposition entitles us to go
Meenerah AW ALT. Tate aaa EL ee ee de te ah ne tan end ten PaineEXHIBIT “D”DAVID J. COOK, ESQ. (State Bar # 060859)
ROBERT J. PERKISS, ESQ (State Bar # 62386)
COOK COLLECTION ATTORNEYS
A PROFESSIONAL LAW CORPORATION
165 Fell Street
San Francisco, CA 94102
Mailing Address: P.O. Box 270
San Francisco, CA 94104-0270
Tel.: (415) 989-4730
Fax: (415) 989-0491
Email: Cook@SqueezeBloodFromTumip.com
File No. 53,755
Attorneys for Plaintiff
ALIGN TECHNOLOGY, INC.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
UNLIMITED CIVIL JURISDICTION
Co DMN DH Bw
ALIGN TECHNOLOGY, INC., a
corporation,
CASE NO. 109CV 154000
Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANT'S MOTION TO QUASH FOR
LACK OF PERSONAL JURISDICTION
vs.
PETER RIVOLI, an individual; SAM
RIVOLI, an individual;
AND DOES I THROUGH X, AND Date: 2/25/10
SS
18 | EACH OF THEM, INCLUSIVE, Time: 9:00 am, oe
ept.: ” AY h
19 Defendants. Judge: Hon. MARS H. PIE
a EE
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONVI.
vil.
VII.
TABLE OF CONTENTS
INTRODUCTION.
A. FACTS ..............0....,
1, Teen Program . Pee eer tee e ners teeeeenetteenreeer eee 2
a. PETER had access to the Terms and Conditions .................. 3
2. Non-teen Program (Adult Program). oo... eee eee ccc cece ceeeeeeueees 3
3. Procedure - Ship to ALIGN. ooo... ccc cece ececcececeecceee 4
EXERCISE OR JURISDICTION «0.0.00. .cec eee ceeeecee cc eee eee eee eeee, 4
THE FORUM SELECTION CLAUSE IN THE TERMS AND CONDITIONS OF ALL OF
THE ORDERS WHICH ARE THE SUBJECT OF THIS SUIT PROVIDES THAT
CALIFORNIA COURTS HAVE EXCLUSIVE JURISDICTION OF THIS LITIGATION.
A. SAM, AS WELL AS PETER, ARE SUBJECT TO THE
FORUM SELECTION CLAUSE 2.0.2... 0s eos ceececeacccecececuecee 8
B. DEFENDANTS DO NOT ADDRESS THE FORUM SELECTION CLAUSE IN
THEIR MOTION TO QUASH, AND PRESUMABLY THEY ARE WAIVING
THIS ARGUMENT 000... eee ee cc esc cee ec ec ene eceeeeeees 9
ALTERNATIVELY, THIS COURT HAS LIMITED OR SPECIFIC
PERSONAL JURISDICTION OVER THE DEFENDANTS
A. The Purposeful Availment Requirement ...........,
B. The Claim Arises Out of Or Is Related to Defendant’s California Activities ... 13
Cc. Jurisdiction Comports With Fair Play and Substantial Justice ............... 14
NOTIONS OF FAIR PLAY SUPPORT JURISDICTION IN CALIFORNIA ......... 14
CONCLUSION 1.0... ee eee eee cc cece eeeetretnetubiieeescee. 15
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONTABLE OF AUTHO! ES
CASES: PAGES:
Bancomer S.A. v. The Superior Court of Los Angeles County (Reilly)
44 Cal.App.4th 1450, 52 Cal.Rptr.2d 435 (Cal.App.2 Dist. 1996) .........0. e000 9
Boaz v. Boyle Co.
40 Cal.App.4th 700 (1995) 6... eee cccccceeuceeeeececeusececececs 10
Brown v. Watson, Jr.
207 Cal.App.3d 1306, 255 Cal.Rptr. 507 (Cal.App.2 Dist. 1989) ............002005 15
co mm IN DH Bw Dw
Bugna v, Fike, Jr.
80 Cal. App.4th 229, 95 Cal.Rptr.2d 161 (Cal-App.1 Dist. 2000) .............2008 8,9
xs
Burger King Corporation v, Rudezewicz
12 AT US, 462 (1985) occ eee ee ccc s ec eecneteeeenntenernnee 12,14
13 | Cornelison v. Chaney
14 (1976) 16 Cal.3d 143. ccc ccc eceaeeceeeccveneeaees 10, 13
15 | CQL Original Products Inc. v. National Hockey League Players’ etc. :
16 39 Cal.App.4th 1347 (Cal.App.4 Dist. 1995) 00.20.00. ccc ceccccccceuevececces 6,9
17} Feldman v. Google, Inc.
18 513 F.Supp.2d 229 (USDC, E.D. Pennsylvania, March 29 2007) ...............020- 6
19 }| Hall v. LaRonde
20 56 Cal.App.4th 1342, 66 Cal.Rptr.2d 399 (Cal.App.2 Dist. 1997) ............000005 12
Jewish Defense Organization, Inc. v. The Superior Court of Los Angeles
72 Cal.App.4th 1045, 85 Cal.Rtpr.2d 611 (Cal.App.2 Dist. 1999)
Mihlon v, The Superior Court of Los Angeles County
169 Cal.App.3d 703, 215 Cal.Rptr. 442 (Cal.App.2 Dist. 1985)
Net 2 Phone Ine. v, The Superior Court of Los Angeles County
109 Cal.App.4th 583 (Cal.App.2 Dist. 2003)
ii
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONSchlessinger v. Holland America, N.V.
120 Cal.App.4th 552 (Cal.App.2 Dist. 2004) Lee eee eeececeer eee e ee 6
Snowney v. Harrah's Entertainment, Inc.
(2005) 35 Cal.4th 1054, 29 Cal.Rptr.3d 33 ..
Vons Cos., Inc. v. Seabest Foods, Inc.
(1996) 14 Cal.4th 434 oo... cence cee eeceecunenaes 10, 13, 14
STATUTES:
California Practice Guide, “Civil Procedure Before Trial,” ( Weil and Brown, Jr.)
CON DH bh ww
S
Section 3:225
Section 3:244
G8
iii
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONCot Aw PF WwW HN
I. INTRODUCTION.
Plaintiff ALIGN TECHNOLOGY, INC. (“ALIGN”) brings this collection action against
Defendants PETER RIVOLI (“PETER”) and SAM RIVOLI (“SAM”), father and son
orthondontists located in Rochester, New York. ALIGN is a California corporation whose
headquarters and main offices are located in Santa Clara County. The business of ALIGN is to
provide clear polymer alignors used to straighten teeth in increments in place of the use of braces.
The suit is for $145,894.64 covering about 80-100 orders that were invoiced during 2009 which
were provided by Plaintiff to Defendants.
Plaintiff for nearly 10 years provided its product line to Defendants. Plaintiff provided to
the Defendants over 1,000+ products to Defendants PETER and SAM during the period of about
2003 - 2009. Plaintiff's terms and conditions accompanies each order which had a forum selection
clause providing that the federal and state courts in California had exclusive jurisdiction to
adjudicate any dispute. Each order also provided that California law controlled.
Defendants have made a motion to quash limited to the contention that the court does not
have general nor specific jurisdiction over the Defendants. Defendants fail to address the forum
selection clause, even though Align’s counsel advised Defendants’ New York counsel by letter
dated 10/22/09 of the forum selection clause.
A. FACTS.
PETER and SAM RIVOLI are orthodontists in Rochester, New York and operate under the
business name of Rivoli & Rivoli Orthodontics, which is a registered professional corporation.
(Peter Rivoli Deposition, hereinafter “Peter Depo.,” 6:2-9.) The father, SAM, is semi-retired in
that he works only about 17 hours a week for 8 months per year. (Sam Rivoli Deposition,
hereinafter “Sam Depo.,” 6:12-18; 7:16-19.) Apparently, he is the only other orthodontist working
in the offices of Rivoli & Rivoli. (Sam Depo., 28:15-17.) They have been placing orders with
ALIGN for approximately ten years in which they have placed approximately 1,500-2,000 orders.
(Peter Depo., 8-10:47, 13:9, Exh. 2.) During 2008, about 165 orders were placed with ALIGN, and
80-100 orders in 2009. (Peter Depo., 43:2-44:8; 47:20-22.) The orders which are the subject of this
1
a
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONsuit were invoiced in 2009. (Peter Depo., 9:8-11; 9:22-10:4; 10:18-25, Exh. 2.)
The orders generally related to two basic programs: A teen program and a non-teen (or
adult) program. A teen program began in 2009 and could only be ordered online. The other
ALIGN programs still could be ordered by a paper request. (Peter Depo., 37:12-38:4; 38:24-39:5.)
PETER ordered approximately 12-18 teen programs online in 2009. (Peter Depo., 39:23-25.)
1. Teen Program. Examples of some of the 12-18 online teen program orders are
attached to PETER’S Deposition as Exhibits 6-1, 6-2, 6-5, 6-11, 6-14, 6-16 & 6-20. Copies of
these computer forms are attached to the Declaration of Robert J. Perkiss marked Exhibit “A.”
woo a AM FF YW WN
The computer form is the same for each order and PETER’s procedure in completing these
forms is the same. As an example, Exh. 6-1 (attached hereto as part of Exhibit “A ”), prior to
PETER completing and submitting the “Treatment Summary/Plan,” has his staff complete step 1
of the computer form, which is a “doctor and patient form.” PETER than completes the
“Treatment Summary/Plan” by checking the appropriate boxes and then he hits the submit button.
(Peter Depo., 66:23-69:2.)
At the end of the checked boxes, at the bottom of page 3 of the form, it states as follows:
“This form and ClinCheck approval constitutes your final and complete
prescription to Align Technology . Diagnosis and prescription are the decision and
sole responsibility of the doctor ordering this appliance who waives any and all
claims against Align and Employees of Align based on the failure of Invisalign to
achieve a successful outcome, either alone or in combination with other appliances.
Align Technology Inc. reserves the right to refuse any case. All cases submitted to
Align Technology are governed by the details listed in the Terms and Conditions and
the Pricing and Billing Policies. This form also constitutes legal and binding
acceptance of financial responsibility according to the terms of the Pricing and
Billing Policies in effect at the time of this case submission.”
PETER acknowledged that he has never read this paragraph. (Peter Depo., 69:3-70:5.)
The same scenario is seen in each of the other exhibits in which there is a teen order placed
with ALIGN. Similarly, PETER acknowledges that he checked off the boxes, hit the submit
button, but never read the terms starting with “This form and ClinCheck approval constitutes . . -
at the bottom of page 3 on any of the submissions. (E.g., Exh. 6-2 (Peter Depo., 70:13-71:3), Exh.
6-5 (Peter Depo., 79:13-80:23), Exh. 6-9 (Peter Depo., 87:19-88:21; 88:25-89:9), Exh. 6-11 (Peter
Depo., 90:13; 91:21-92:13), Exh. 6-14 (Peter Depo., 98:23-99:23), Exh. 6 -16 (Peter Depo.,
2
i
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTION106:22-107:23), Exh. 6-20 (Peter Depo., 112:16-113:10).)
a. PETER had access to the Terms and Conditions.
PETER testified that he had computer access to the Terms and Conditions referred to
in the above quote found at the bottom of page 3 of the “Treatment Summary/Plan.” PETER had a
computer in his office, online facilities, and was able to access to the Terms and Conditions to
ALIGN’s online website, but he testified that he did not do it. (Peter Depo., 126:11-22.)
2. Non-teen Program (Adult Program). The balance of the remaining 80-100 orders
which were invoiced in 2009 on which this suit is based would have been non-teen or adult
wo oy DH ® YN
program orders. (Peter Depo., 49:23-25; 43:2-44:8; 47:20-22.)
PETER submitted these non-teen program orders by the use of paper orders, rather than
online orders. (See, e.g., Exhs. 6-4, 6-6, 6-7, 6-8, 6-13, 7-1 through 7-15 to PETER’s Deposition
which are attached to the Declaration of Robert J. Perkiss marked Exhibits “B” and “C”.) The
B= 5
13 form of order is the same in each exhibit. It is entitled “Prescription & Diagnosis - FULL.” As an
example, see Exh. 6-4 which PETER testified that he completed and then signed the “Prescription
15 |) & Diagnosis - FULL” form (Peter Depo., 75:5-18). Immediately after the signature line at the
bottom of the page, it states:
“This form and ClinCheck approval constitutes your final and complete
prescription to Align Technology. Diagnosis and prescription are the decision and
sole responsibility of the doctor ordering this appliance who waives any and all
claims against Align and Employees of Align based on the failure of Invisalign to
achieve a successful outcome, either alone or in combination with other appliances.
Align Technology Inc. reserves the right to refuse any case. All cases submitted to
Align Technology are governed by the details listed in the Terms and Conditions of
Use for Invisalign and the Pricing and Billing Policies. This form also constitutes
legal and binding acceptance of financial responsibility in accordance to the terms
of the Pricing and Billing Policies in effect at the time of this case submission.”
This is a standard form used for years with the same language. (Peter Depo., 77:16-79:9.)
PETER also testified that he signed multiple other “Prescription & Diagnosis - FULL”
forms with the same language, but did not read the Terms and Conditions and/or access them.
(Peter Depo., Exh. 6-6, 81:5-25; Exh. 6-8, 87:4-10; Exh. 13, 94:5-95:18; Exhs. 7-1 through 7-15,
114:10-115:19 & 127:4-128:2.)
3
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTION3. Procedure - Ship to ALIGN.
Whether it is a teen or non-teen order, the procedure after completing the order form is to
take impressions, x-rays and photos, and place them in a box with the order form and ship it to
ALIGN. (Peter Depo., 46:19-47:15.) PETER did this over the years for about 1,500 - 2,000 orders.
In 2009, he did it approximately 80 - 100 times. (Peter Depo., 46:16-22.)
Il. TERMS AND CONDITIONS PROVIDE FOR EXCLUSIVE JURISDICTION IN THE
FEDERAL AND STATE COURTS IN CALIFORNIA.
PETER testified that he had a computer in his office with online facilities and he was able
to access the Terms and Conditions through ALIGN’s website, but he did not. (Peter Depo.,
126:11-22.) He further testified that he never asked ALIGN for a copy of the Terms and
Conditions and he testified that he never read the Terms and Conditions. (Peter Depo., 136:40-25.)
The online Term & Conditions for 1/1/09 and 10/11/08 state identically under the
provision “(DOCTOR WARRANTY” as follows:
“Doctor will regularly review the Align website to verify that Doctor is aware of
any changes to Align’s Pricing, Terms & Conditions, . . ep
Each of those Terms & Conditions state under the “GOVERNING LAW” provision on the
last page of the 1/1/09 & 10/11/08 “Pricing, Terms & Conditions for Invisalign Products” as
follows:
“GOVERNING LAW,
These terms and conditions shall be governed by, and construed and interpreted in
accordance with the laws of the state of California without regard to its conflict of law
principles. The federal and state courts within the state of California shall have exclusive
jurisdiction to adjudicate any dispute arising out of these terms and conditions.”
(See Exhs. 8-5 and 8-6 to Peter Depo. attached to Perkiss Declaration as part of
Exhibit “D.”)
II. LEGAL ARGUMENT.
IN DEFENDING THE MOTION TO QUASH, PLAINTIFF NEED NOT PROVE
THE TRUTH OF THE ALLEGATIONS CONSTITUTING THE CAUSE OF
ACTION, THEY ARE PRESUMED TRUE FOR PURPOSES OF PLAINTIFF
JUSTIFYING THE EXERCISE OR JURISDICTION.
Plaintiff ALIGN alleges that the liability of these Defendants, and each of them, as alleged
at paragraph 4 of the Complaint, page 2, lines 8-12, as follows:
4. Prior to the commencement of this action within this judicial district,
4
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONDefendants, and each of them, became and still are indebted to Plaintiff who sold
and delivered to said Defendants, and each of the same, at their special instance and
request, and or furnished, GOODS, WARES and. MERCHANDISE, and related
products thereon for use in the operation of the Defendant’s business . . .”
Plaintiff has also pled in paragraph 7 of the Complaint that the Defendants, and each of
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them, are agents of each other, or more specifically, each of the Defendants is liable on the orders
(ie., contracts) made by the other. The Complaint pleads at par. 7, page 2, lines 25-27, as follows:
7 7. Atall times herein mentioned, Defendants, and each of them, are agents,
employees and servants of each other and have undertaken the acts as described
herein in the course and scope of their agency and/or employment.”
In defending a quash motion, Plaintiff need not prove these allegations to justify
own nr Aw
jurisdiction. They are presumed true for purposes of the motion. Mihlon v. The Superior Court of
Los Angeles County, 169 Cal.App.3d 703, 215 Cal.Rptr. 442 (Cal.App.2 Dist. 1985) held as
follows:
“an unverified complaint has no evidentiary value in determination of personal
jurisdiction (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212, 114
Cal.Rptr. 743), but such pleading has limited cognizable significance as "a material
fact, in that it defines the cause of action, the nature of ‘which has some bearing
upon the decision whether it is fair and reasonable to require the nonresident parties
to appear and defend in this state. But the pleader has no burden of proving the
truth of the allegations constituting the causes of action in order to justify the
exercise of jurisdiction over nonresident parties." (Lundgren v. Superior Court
(1980) 111 Cal.App.3d 477, 485, 168 Cal. Rptr. 717.) The plaintiff need only
present facts demonstrating that the conduct of ‘defendants related to the pleaded
causes is such as to constitute constitutionally cognizable "minimum contacts."
Under the pleaded causes of action, each of the ‘Defendants becomes liable under the
contract and subject to its terms entered into by the co-Defendant.
IV. THE FORUM SELECTION CLAUSE IN THE TERMS AND CONDITIONS OF ALL
— THE ORDERS WHICH ARE THE ee SUIT PROVIDES On.
The current suit is based on 2009 invoices resulting from orders, substantially all of which
were placed in 2009, either by signed orders/contracts or made directly online. Each of these
orders is subject to various terms and conditions which include a forum selection clause providing
for exclusive jurisdiction to California courts over this litigation.
The written order for non-teen programs provides below the doctor’s signature a reference
to the Terms and Conditions as being part of the contract, as does the online order which
5
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONreferences the Terms and Conditions as part of the order which comes immediately after the last box
was checked off by the doctor in describing the treatment plan. See Deposition Exhs, 6-1 & 6.4
attached as part of Exhibits “A” and “B” to the Perkiss Declaration as examples. The Terms and
Conditions were amended from time to time, but over the last 7 or 8 years included the same
forum selection clause. The Terms and Conditions commencing on 10/11/08 and 1/9/09 marked
as Exhibits 8-5 and 8-6 in the deposition are attached as Exhibit “D” to the Perkiss Declaration.
The “GOVERNING LAW” section that “. . . The federal and state courts within the state of
California shall have exclusive jurisdiction to adjudicate any dispute arising out of these terms and
conditions.”
Under California law, a forum selection clause is presumed valid and places the burden of
proof on the party seeking to overturn the forum selection clause. See Schlessinger v. Holland
America, N.V.,120 Cal.App.4th 552, 558 (Cal.App.2 Dist. 2004); also CQL Original Products
Ine. v. National Hockey League Players’ etc., 39 Cal.App.4th 1347, 1354 (Cal.App.4 Dist. 1995).
Actual notice of the forum selection clause is not required to enforceable. The party to be
charged merely has to have an opportunity to read the clause to be bound by it. In Schlessinger v.
Holland America, N.V., supra, the court in reviewing several other steamship cases stated that the
ship’s passengers merely had to have the opportunity to read the terms and conditions as follows:
“... Indeed, contractual clauses have been affirmed where the passenger never
opened the ticket packet before boarding. (Geller v. Holland-America Line (2d Cir.
1962) 298 F.2d 618, 619 [limitations period); Ferketich v. Carnival Cruise Lines
(E.D.Pa. 2002) 2002 WL 31371977, *4 [passenger had adequate notice of terms of
ticket contract, including forum selection clause, because she received ticket before
boarding, even though she would have forfeited entire cost of ticket if she had
cancelled on receipt thereof]."!y" (P 559)
In the Schlessinger v. Holland America, N.V. case, a copy of the form of cruise contract
would have been provided upon request, or could have been viewed on the website. The court still
upheld the forum selection clause. Thus, it is access, not notice of the forum selection clause,
which binds the contracting party. See also Feldman v. Google, Inc., 513 F.Supp.2d 229 (USDC,
E.D. Pennsylvania, March 29, 2007), referring to California law, and the court stated as follows:
“The type of contract at issue here is commonly referred to as a "clickwrap"
agreement. A clickwrap agreement appears on an internet webpage and requires
6
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONthat a user consent to any terms or conditions by clicking on a dialog box on the
screen in order to proceed with the internet transaction. Citations omitted] Even
though they are electronic, clickwrap agreements are considered to be writings
because they are printable and storable. [Citation omitted] (Page 236)
To determine whether a clickwrap agreement is enforceable, courts presented with
the issue apply traditional principles of contract law and focus on whether the
plaintiffs had reasonable notice of and manifested assent to the clickwrap
agreement.[{Citations omitted] Absent a showing of fraud, failure to read an
enforceable clickwrap agreement, as with any binding contract, will not excuse
compliance with its terms. [Citation omitted)"
In Net 2 Phone Inc. v, The Superior Court of Los Angeles County, 109 Cal.App.4th 583
at 588-589 (Cal.App.2 Dist. 2003), the court stated:
“Asa threshold matter, we find that the forum selection clause would be
enforceable had Net2Phone's customers filed this action themselves. We perceive
no unfairness in Net2Phone's requirement that certain contractual terms must be
accessed via hyperlink, a common practice in internet business. The fact that the
forum selection clause may have been a "take it or leave it" proposition, and not
vigorously "bargained for" as Consumer Cause contends, does not make the clause
peenioeeale ‘Carnival Cruise Lines, Inc. v. Shute, supra,499 U.S. at pp. 593,
1)”
coat AY FY WN
In this case, both the paper orders signed by the doctor, as well as those orders submitted
over the Internet, referenced that those orders were subject to Terms and Conditions, and which :
included the forum selection clause. The reference on the Internet orders when placing the orders
provided the RIVOLIs the opportunity to access the Terms and Conditions via a hyperlink in
which the Terms and Conditions were underligned. Similarly, the reference to the Terms and
Conditions in the paper order could have been easily obtained by making a request to Plaintiff, or
again accessing them on ALIGN’s website. Defendants are sophisticated consumers of Plaintiff's
product line, in which over 6 years plus, they purchased approximately $2,060,000 in total dollar
volume. In light of the total dollar volume, number of orders, uniqueness of Plaintiff's product
line, weekly frequency of Defendants interacting with Plaintiff, and Defendants’ position as a
spokesman for Plaintiff, the court can infer that Defendants were informed and educated
consumers of Plaintiff's product line.
PETER admits that he never requested a copy of the Terms and Conditions and, indeed,
states that he was too busy to be concerned with them; i.e., he elected to ignore them. However, he
is still subject to those Terms and Conditions, including the forum selection clause which provides
7
aE,
+] MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONthat California courts have exclusive jurisdiction over this litigation. Neither PETER nor SAM
can seek to escape these contractual terms by an act of deliberate claimed ignorance.
A. SAM, AS WELL, AS PETER, ARE SUBJECT TO THE
FORUM SELECTION CLAUSE.
Although SAM may argue that he is not bound by the forum selection clause in that he
does not recall signing any paper orders or submitting any orders over the Internet for ALIGN
products. However, this is of no avail. In Net 2 Phone Inc. v. The Superior Court of Los Angeles
County, supra at page 588, the court stated:
“A forum selection clause may also be enforced against a plaintiff who is not a
to the contract in question if the plaintiff is “closely related to the contrac!
relationship.” The plaintiff challenging the forum selection clause has the burden of
showing, in response to a defendant's motion to stay or dismiss, that enforcement of
the clause would be unreasonable under the circumstances. (Lu v. Dryclean-U.S.A.
of California, supra, \1 Cal.App.4th at p. 1493.)”
In Bugua v. Fike, Jr., 80 Cal.App.Ath 229, 233, 95 Cal.Rptr.2d 161 (Cal-App.1 Dist.
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2000), the court held in that case that where the alleged conduct was closely related to the
contractual relationship, and where there was an allegation that the parties were the alter egos of
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each other, the fact that one party did not sign the agreement did not render the forum selection
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clause unenforceable. Simplistically, the name of the dental firm is “Rivoli & Rivoli,” and from
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the viewpoint of the purchasing public, vendors such as Plaintiff, the state of New York and its
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regulators, PETER and SAM hold themselves out as partners and joint participants.
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SAM’s actual participation gives credence to the appearance that he is PETER’s partner or
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joint venturer. SAM acknowledges that he works in the practice approximately 17 hours a week
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for 8 months of the year and that, although he can’t remember, may have placed an order with
ALIGN, but in any case, assists PETER in handling some of these cases. Any patient on the
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premises would clearly witness SAM’s appearance,
Plaintiff alleges that SAM and PETER are agents of each other and would otherwise be
2
subject to the contracts and orders entered into by each party, which would include any forum
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selection clause. (Complaint, {4 & 7.) Miklon v. The Superior Court of Los Angeles County,
»
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supra. That case held that plaintiff need only present facts demonstrating that the defendant’s
yon
on
8
“MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT" "S$ MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONconduct related to the pled causes of action constituted “minimum contacts,” it did not have to
prove the allegations constituting the causes of action. Here, the first cause of action alleges that
each of the parties are agents of the other. Thus, any contract entered into by one party would
necessarily subject the other party to the contract and its terms and conditions, including a forum
selection clause. In other words, a forum selection clause may be enforced against a non-signature
who is “closely related” to the contractual relationship involved, See Bancomer S.A. ¥. The
Superior Court of Los Angeles County (Reilly), 44 Cal.App.4th 1450, 1459, 52 Cal.Rptr.2d 435
(Cal.App.2 Dist. 1996); Bugna v. Fike, Jr., 80 Cal.App.4th 229, 233, 95 Cal-Rptr.2d 161, 165
oon A HW WN
(Cal.App.1 Dist. 2000).
Defendants have the burden of proof in defeating the forum selection clause. Defendants
in this case have a “heavy burden” proving any enforcement of this forum selection clause would
be unreasonable under the circumstances of the case. See Bancomer S.A. v. The Superior Court
of Los Angeles County (Reilly), 44 Cal.App.4th 1450, 1457, 52 Cal.Rptr.2d 435, 439. In effect,
the defendant must establish that the designated forum would be so inconvenient that it would
effectively deny them their day in court. See CQL Original Products Inc. v. National Hockey
League Players’ Assn., supra where the court stated that the party must show that the forum that
was selected “would be unavailable or unable to accomplish substantial justice.” No such claim
has been made nor could it be made.
B. DEFENDANTS DO NOT ADDRESS THE FORUM SELECTION CLAUSE
IN THEIR MOTION TO QUASH, AND PRESUMABLY THEY ARE
WAIVING THIS ARGUMENT.
Defendants’ motion to quash based on lack of jurisdiction does not address the forum
selection clause which they were aware of at all times prior to making this motion. Plaintiff's
counsel on 10/22/09 wrote Defendants’ New York attorney that jurisdiction was properly laid in
California on the basis of the forum selection clause and quoting the clause as set forth in the
Terms and Conditions. (A copy of that letter is attached as Exhibit “E” to Perkiss Declaration.)
Notwithstanding, Defendants declined to address the forum selection clause.
9
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONV. TH URT HAS GENE] SDICTION.
Defendant has made a motion to quash based on lack of personal jurisdiction. Personal
jurisdiction is of two types, namely, general and specific. General jurisdiction exists where the
activity of the Defendant, a non-resident, are substantial, continuous and systematic, or extensive
and wide-ranging. See Boaz v. Boyle Co., 40 Cal.App.4th 700, 717 (1995). Where a non-
resident’s commercial activities impact Califomia on a “substantial, continuous and systematic
basis,” they are subject to general jurisdiction, and the party may be sued on any cause of action,
even on causes of action unrelated to their activities within the state. Cornelison v. Chaney
Cowon Aw F YN
(1976) 16 Cal.3d 143, 147; Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.
General jurisdiction requires the non-resident’s contact with California must be substantial,
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continuous and systematic. Plaintiff and Defendants maintained for nearly ten years a continuous
-
two-way street. Defendants shipped to Plaintiff what amounts to be a small, telephone book size
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box containing x-rays, impressions, and a Treatment Plan. Plaintiff works up this package and
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presents a proposed product to Defendants. Defendants approve or disapprove electronically, and
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if approved, Plaintiff ships the product to the Defendants. This repartee between Plaintiff and
Defendants has been going on for ten years and during the ten years, the parties have had this type
a
of communication on a weekly, and from time to time, daily basis. Unlike most jurisdictional
a
battles in which Defendants claim a one-way street of Plaintiff providing product to Defendants in
&
their home state, here, every separate order is evidenced by a mutuality of communication, both
p=
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emanating from California and from New York.
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Defendant acknowledges that he has been ordering product from Plaintiff for
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approximately ten years. He is aware that Plaintiff's headquarter office, as well as its main office
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during this period of time have been located in California. He also acknowledges that over this
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period of time he has placed approximately 1,500 - 2,000 orders, of which approximately 80 - 100
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of those were placed in 2009 and which forms the subject matter of this dispute. Defendant
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acknowledges that he placed these orders in paper form or online and then forwarded to Plaintiff
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x-rays, photographs and impressions for Plaintiff to process. During most of this period, the x-
yn
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10
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
QUASH FOR LACK OF PERSONAL JURISDICTIONrays, photographs and impressions were forwarded to California. More recently, these x-rays,
photographs and impressions have been forwarded to Texas. Notwithstanding, the orders are
placed with ALIGN who is in Califomia who controls, monitors, invoices, and receives payment,
here in California. Defendants bounced a series of checks, deposited in ALIGN’s local bank.
The parties have not entered into a casual relationship, but have entered into a substantial,
continuous and systematic commercial relationship which impacts ALIGN in California. They
have placed some 1,500 - 2,000 orders with ALIGN located in California over the past ten years.
During most of this time, the processing occurred in Califomnia. More recently, some of the
wo on Aw FY HN
processing and manufacturing has occurred outside of Califomia. However, that does not change
or alter the substantial, continuous and systematic relationship between the parties on the impact
on ALIGN in Califomia. On this additional ground, the motion to quash for lack of personal
jurisdiction should be denied.
VI. ALTERNATIVELY, THIS COURT HAS LIMITED OR SPECIFIC
PERSONAL JURISDICTION OVER THE DEFENDANTS.
Specific or limited jurisdiction requires that the out-of-state defendant purposefully
establish contacts with the forum state, that Plaintiff's cause of action “arises out of” or is “related
to” defendant’s contacts with the forum, and complies with “fair play and substantial justice.” See
California Practice Guide, “Civil Procedure Before Trial,” ( Weil and Brown, Jr.) Section 3:225.
A. The Purposeful Availment Requirement.
Purposeful availment occurs where the non-resident defendant purposefully directs its
activities at the California resident. Specifically, the courts have cautioned against a too narrow
interpretation of the purposeful availment test. The court stated in Snowney v. Harralt’s
Entertainment, Inc. (2005) 35 Cal.4th 1054, 1067, 29 Cal.Rptr.3d 33, as follows:
ts, Pref avaiinent may ci en oath gament eit whenever
the defendant purposefully and voluntarily ‘directs its activities toward the forum
state in an effort to obtain a benefit from that state.”
Whether the orders were paper orders or Internet orders, they were orders directed at
ALIGN whose headquarters and main office are located in Santa Clara, California. Defendant
i
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
OUASH FOR LACK OF PERSONAL JURISDICTIONinitiated the orders by mail or over the Internet. It was the California office that controlled the
granting of credit, insured the completion of the orders, would have ultimately handled any
disputes and/or modifications of said orders, issued invoices, and received payment. Although part
of the processing, i.e. manufacturing, may have occurred outside of California, the orders, the
completion of, the invoicing, and the receipt of payment, all occur in California. This has occurred
some 1,5000 - 2,000 times over the last approximately ten years and approximately 100 times in
2009 alone. It is the Defendants who have directed their activities to ALIGN in California. An
occasional visit by a sales representative in Defendants’ office does not change that in 2009. There
were 80-100 orders in 2009. In fact, PETER testified that the salesman appeared only a few times.
Even the means of communications is not determinative. “Minimum contacts” may be
created by a non-resident’s use of the mail, telephone or electronic mail. See Hall v. LaRonde. 56
Cal.App.4th 1342, 1344, 66 Cal.Rptr.2d 399, 400 (Cal.App.2 Dist. 1997).
Although invoking California law is not a requirement of purposeful availment, it is
indicative that the Defendants have purposefully availed themselves of California law where there
is a provision in the terms and conditions of any contract providing that California law controls.
As indicated above in the statement of facts, the terms and conditions under the provision
GOVERNING LAW specifically provides that California law controls. In Burger King
Corporation v. Rudezewicz, 471 U.S. 462 at 482 (1985), the court stated as follows:
Although such a provision standing along would be insufficient to confer
jurisdiction, we believe that, when combined with the 20-year interdependent
relationship Rudzewicz established with Burger King’s Miami headquarters, it
reinforced his deliberate affiliation with the forum state and the reasonable
dase re purposely avaied binaclf of tne benefit and
Preview
oem YN DAH eh YW NY | RNR NR ND ee ee ee ei a RBNRRBRBBHRBSSEaerwrABREBHKAS DAVID J. COOK, ESQ. (State Bar # 060859) COOK COLLECTION ATTORNEYS A PROFESSIONAL LAW CORPORATION 165 Fell Street, San Francisco, CA 94102 FILED P.O. Box 270, San Francisco, CA 94104-0270 ‘ase Telephone: (415) 989-4730 Superior Court of California Facsimile: (415) 989-0491 Email: Cook@SqueezeBloodFromTumip.com 07/31/2018 File No. 57,619 BY: VANESSA WU Deputy Clerk Attorneys for Plaintiff ect ALIGN TECHNOLOGY, INC. SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION ALIGN TECHNOLOGY, INC., a ) CASE NO. CGC-17-561692 corporation, ) ) DECLARATION OF DAVID J. COOK, ESQ. Plaintiff, ) IN SUPPORT OF EX PARTE APPLICATION ) FOR ISSUANCE OF ORDER AUTHORIZING vs, ) DISCOVERY [NOTICE OF TAKING ) DEPOSITION, REQUEST FOR PRODUCTION NICOLE LAMBERT, an individual, ) OF DOCUMENTS, AND CONTINUANCE OF ) HEARING] AND DOES I THROUGH X, AND ) EACH OF THEM, INCLUSIVE, ) ) Date: August 1, 2018 Defendant. ) Time: 11:00 a.m. } Dept.: 302 Judge: Harold E. Kahn I, DAVID J. COOK, hereby declare and state as follows: 1. Iam one of the attorneys of record for Plaintiff in the above-entitled action, am duly authorized to practice before all courts in the State of California, and am familiar with the facts and circumstances in this action. 2. Plaintiff ALIGN TECHNOLOGY, INC. has obtained a Judgment on June 5, 2018 in the total amount of $52,633.19, a true and correct copy of the JUDGMENT BY CLERK BY DEFAULT is attached hereto marked Exhibit “A.” Defendant is a dentist and Plaintiff is entitled to effectuate collection. 1 DECLARATION OF DAVID J. COOK, ESQ. [IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING)oe YN AH PF YW DN Fete eee tee RBRRRRBRESSe VAD ESS AS 3. On July 27", 2018 Declarant’s office was personally served with Notice of Motion and Motion to Vacate Default Judgment and Dismiss Action for Lack of Personal Jurisdiction, hereinafter “Motion.” 4. Declarant provided notice of this ex parte hearing at the hour of 8:34 a.m. and a copy of the notice thereof is attached hereto marked Exhibit “B” and incorporated herein by reference. 5. Declarant attempted te resolve these issues by way of attached letter, a copy of which is attached hereto marked Exhibit “C” and incorporated herein by reference. 6. After an email exchange, Daniel Frankston, the attorney for Dr. Lambert refused to stipulate to jurisdictional discovery and requested a court hearing. 7. Declarant has been representing ALIGN in excess of ten (10) years.. Declarant represented ALIGN in a case entitled Align Technology, Inc., v. Peter Rivoli, et al., Santa Clara County Superior Court Case No. 109CV 154000. In that case the defendants filed a motion to quash with jurisdictional grounds, a near duplicate motion as the motion filed here. Plaintiff opposed and filed the attached Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Quash for Lack of Personal Jurisdiction marked Exhibit “D,” and incorporated herein by reference, and the attached Declaration of Peter M Vadasz in Support of Opposition to Defendant’s Motion to Quash for Lack of Personal Jurisdiction marked Exhibit “E,” (without exhibits) and incorporated herein by reference. The court denied the motion to quash, and a copy of the order denying the motion is attached hereto marked Exhibit “F,” and incorporated herein by reference 8. Declarant personally sent the Rivoli Memorandum, Declaration, and Order to convince Mr. Frankston that his motion is without merit on the basis that ALIGN had prevailed on identical facts as raised by the Rivoli defendants, i.e. that they were located in New York. Declarant also indicated in the email traffic that the parties entered into an agreement that has a forum selection clause, 9. The purpose of this jurisdictional discovery is to demonstrate purpose availment, that Dr. Lambert made multiple order of Aligners and retainers subject to ALIGN’s “terms and 2 DECLARATION OF DAVID J. COOK, ESQ. IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF — ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]oe NY DH RF WN = BRRRRBRES SBA RDESEEAS conditions,” that she subjected herself to the jurisdiction of the State of California, and that otherwise this motion should be denied. In the face of the ex parte notice, Declarant has not been contacted by adverse counsel. I declare under penalty of perjury under the la foregoing is true and correct. Executed on July 31, 2018 at Sg FAUSERS\DJCNEW\LAMBERT_¢ 3 DECLARATION OF DAVID J. COOK, ESQ. IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]EX TB COA D>ATTORNEY OR PARTY WITHOUT ATTORNEY (vame, sista bar number, and actions): DAVID J, COOK, ESQ. SBN 060859 COK COLLECTION ATTORNEYS, PLC 165 Fell Street, San Francisco, CA 94102-5106 P.O. Box 270 San Francisco, CA 94104-0270 Tasproneno: 415 989 4730 FAXNO. (Opsoee 415 989 0491 EMAL ADDRESS (Opto: COOk@squeezebloodfromturnip.com ATTORNEY FOR iene Plainti££ File #57,619 ‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO X 5 2018 STREETADORESS. 400 McAllister Street JUN X 5 2 MAMLING ADORESS: Same emvaozrcooe San Francisco, CA 94102 CLERK QF THE COURT srnchwme: Unlimited Civil Jurisdiction BY PLAINTIFF: ALIGN TECHNOLOGY, INC., a corporation DEFENDANT:NICOLE LAMBERT, an individual : JUDGMENT Peer By Clerk Fy By Default (J After Court Trial CGC-17-561692 By Court ‘On Stipulation LJ Defendant did Not Appear at Trial 1, Ge) BY DEFAULT en a. Defendant was proparly served with a copy of the summons and complaint. b. Cefendant falled to answer the complaint or appear and defend the action within the time allowed by law. ¢. Defendant's default was entered by the clerk upon plaintiff's application, d. (J clerk's Judgment (Code Clv. Proc., § 685(2)). Defendant was sued only on a contract or judgment of a court of this state for the recovery of money, ¢. Cx) Court sudgmont (Code Civ. Proc., § 685(b)). The court considered (1) (J plaintiffs testimony and other evidence, (2) Gc] plaintifts written declaration (Code Giv. Proc., § 585(d)). 2 (7) onsTIPULATION 8, Plaintiff and defendant agreed (stipulated) that e judgment be entered in this case, The court approved the stipulated ludgment and b the signed written stipulation was filed In the case. c. (-) the stpulation wes stated in open court [—] the stipulation was stated on the record, 3, (] AFTER COURT TRIAL. The jury was walved. The court considered the evidence, ‘a. The case was tried on (date and time): before (name of judicial officer): D. Appearances by: {[) Plaintiff (name each): [1 Plaintiffs attorney (name each): WM (1) @ 2) ) Continued on Attachment 3b, (©) Defendant (name each): [1 _ Defendant's attomey (name each): (1) (1) @) @) 3) Continued on Attachment 3b. ¢. () Defendant did not appaar at tial. Defendant was properly served with notice of trial. d. (2) A statement of decision (Code Cv. Proc. § 632) C_Jwesnot [J was requested. ‘Paget ot? JUDGMENT (Code ef Chil Procedure, $5 555, S48me ° ° PLAINTIFF: ALIGN TECHNOLOGY, INC., a corporation ‘CASE NUMBER: CGC-17-561692 DEFENDANT: NICOLE LAMBERT, an individual JUDGMENT IS ENTERED AS FOLLOwsBy: [CX] THEcourT (Cx) THECLERK 4. [7] Stipulated Judgment. Judgment is entered according to the stipulation of the parties. 5. Parties, Judgment Is a. CX) for plaintiff (name each) Align Technology, , [1] for cross-complainant (name esch): Inc., a corporation and against defendant (names): Nicole and against cross-defendant (name each): Lambert, an individual (5 Continued on Attachment 5a. (1 Continued on Attachment e. b. [7] fordefendant (name each): ¢. [21 forcross-defendant (name each): 6. Amount. 2. Gc) Defendant named In item Sa ebove must c. [J Cross-defendant named in item Sc above must pay pay plaintiff on the complaint: ¢rose-complainant on the cross-complaint: 47,772.23 3,193.96 1,000.00 667.00 . hv jansbe podipo on censal ¢. (2) cross-complainant to recelve nothing from named in item Sb. crose-defendant named In tem 6d. named In item 6b to recover C) Cross-defendant named In item 5d to recover ae 0.00 pep $900 and attomey fees $ 0.00 and attorney fees $0.00 7. [£1 other (epscity): ow: \S|16 o a a UDCUL CFRCER NEWTON LAM Date: © Clerk, by, » Deputy CLERK'S CERTIFICATE (Optional) { certify that this Is a true copy of the original judgment on file in the court. Date: Clark, by + Deputy Page dot ‘BUD-100 [Now Jerussy JUDGMENTEXHIBIT “BRB”David J. Cook From: David J. Cook {davidcook@cookcollectionattomeys. com) Sent: Tuesday, July 31, 2018 8:34 To: ‘Sweet & Walker, P.C.'; a eiepsqueezebloodtrombumip. com! Subject: RE: Our File 58138/ Nicole Lambert Importance: High Dear Mr. Frankston We will be appearing as follows: Date: August 1, 2018. Time: 11:00 a.m. Dept. 302 Purpose: 1. Issuance of order for jurisdictional discovery consisting of a deposition and document request. The deposition will take place in NYC. 2. Continue motion for 60 days pending discovery. Please advise if you will stipulate. We will serve you with papers when they are generated and | expect the same from you. Very truly yours, David J. Cook _ - Zl EoEeeeee EEE EEE From: Sweet & Walker, PC. [mailto:mail@sweetwalker.com] Sent: Monday, July 30, 2018 11:14 AM To: eb Subject: Our File 58138/ Nicole Lambert Mr. Cook, 1am in receipt of your 34 page facsimile of Friday evening in which you indicate that you will be seeking ex parte relief tomorrow in Department 302 of the San Francisco Superior Court. While | have not yet fully reviewed your facsimile, | am herein requesting that you furnish our office with any pleadings you intend to submit in support of your application as soon as they are completed. Please email those to us as soon as possible, Daniel Frankston Sweet & Walker, P.C. P.O. Box 27558 San Francisco CA 94127 3: 10 415.334.1600 448.334.0855 (fax) CONFIDENTIALITY NOTICE: This email message is for the sole use of the intended recipient(s) and may contain confidential or legally privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.EXHIBIT “C?® COOK@COLLECTION ATTORNEYS®, PLC ATTORNEYS AT LAW 165 FELL STREET TEL; (415) 989-4730 SAN FRANCISCO, CA 94102-5106 FAX: (415) 989-0491 MAIL: P.O. BOX 270 SAN FRANCISCO, CA 94104-0270, July 31, 2018 Via email and fax Lorna Walker Daniel Frankston The Law Offices of Sweet & Walker, P.C. 2380 Junipero Serra Blvd., Suite B Daly City, CA 94015 mail@sweetwalker.com Fax No. (415) 334-0855 Re: Align technology, Inc., v. Nicole Lambert, et al. San Francisco Superior Court Case No. CGC-18-561692 Ex Parte Hearing Dear Mr. Frankston: Your counteroffer is rejected outright. Either Dr. Lambert agrees to jurisdictional discovery or she does not. We are experienced in this area and know how to do a jurisdictional deposition. We will not stipulate to any time limitation. A jurisdictional deposition entitles us to go through all of Dr. Lambert’s activities, in which we can demonstrate that she agreed to a forum selection clause and moreover, that her contact with California justifies jurisdiction. I sent you the declaration of Peter Vadasz so you could examine for yourself the level of detail. 1 sent you the memorandum of points and authorities which extensively cites sections of the jurisdictional deposition of Peter Rivoli. These are painstakingly detailed depositions. Either we have a deal which I proposed, or we do not. We are not going to continue these motions but still be forced to show up in court to prove up our entitlement to jurisdictional discovery. I sent you multiple cases which justify jurisdictional discovery. We will not continue tomorrow’s ex parte hearing. Someone else from your office will have to appear or you can appear by CourtCall. Cook@CookCollectionAttomeys.com CollectionLawReporter.com CookCollectionAttomeys.comJuly 31, 2018 Via email and fax Lorna Walker Daniel Frankston The Law Offices of Sweet & Walker, P.C. 2380 Junipero Serra Blvd., Suite B Daly City, CA 94015 mail@sweetwalker.com Fax No. (415) 334-0855 Re: Align technology, Inc., v. Nicole Lambert, et al. San Francisco Superior Court Case No. CGC-18-561692 Ex Parte Hearing Page 2 However you wish to manage this matter, you need to communicate with me by no later than 1:00 p.m. today. } have a number of people at Align Technology, Inc., who are awaiting my hether-to provide a detailed declaration to support jurisdictional discovery.TRANSMISSION VERIFICATION REPORT TIME : 07/31/2818 12:01 NAME: FAX: 4159890491 TEL: 4159894730 SER.# : BROH2389851 DATE, TIME 87/31 12:00 FAX NO. /NAME 14153340855 DURATION 0: 8: 21 aK STANDARD ECM COOK®COLLECTION ATTORNEYS®, PLC ATTORNEYS AT LAW 165FELL STREET TEL: (415) 989-4730 SAN FRANCISCO, CA 94192-5106 FAX: (445) 989-0491 MAIL: P.O. BOX 270 SAN FRANCISCO, CA 94104-0270 July 31, 2018 Via email and fax Loma Walker Daniel Frankston. The Law Offices of Sweet & Walker, P.C, 2380 Junipero Serra Blvd., Suite B Daly City, CA 94015 mail@sweetwalker.com Fax No. (415) 334-0855 Re: Align technology, Inc., v. Nicole Lambert, et al. San Francisco Superior Court Case No. CGC-18-561692 Ex Parte Hearing Dear Mr. Frankston: Your counteroffer is rejected outright. Either Dr. Lambert agrees to jurisdictional discovery or she does not. We are experienced in this area and know how to do a jurisdictional deposition. We will not stipulate to any time limitation. A jurisdictional deposition entitles us to go Meenerah AW ALT. Tate aaa EL ee ee de te ah ne tan end ten PaineEXHIBIT “D”DAVID J. COOK, ESQ. (State Bar # 060859) ROBERT J. PERKISS, ESQ (State Bar # 62386) COOK COLLECTION ATTORNEYS A PROFESSIONAL LAW CORPORATION 165 Fell Street San Francisco, CA 94102 Mailing Address: P.O. Box 270 San Francisco, CA 94104-0270 Tel.: (415) 989-4730 Fax: (415) 989-0491 Email: Cook@SqueezeBloodFromTumip.com File No. 53,755 Attorneys for Plaintiff ALIGN TECHNOLOGY, INC. SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION Co DMN DH Bw ALIGN TECHNOLOGY, INC., a corporation, CASE NO. 109CV 154000 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION vs. PETER RIVOLI, an individual; SAM RIVOLI, an individual; AND DOES I THROUGH X, AND Date: 2/25/10 SS 18 | EACH OF THEM, INCLUSIVE, Time: 9:00 am, oe ept.: ” AY h 19 Defendants. Judge: Hon. MARS H. PIE a EE MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONVI. vil. VII. TABLE OF CONTENTS INTRODUCTION. A. FACTS ..............0...., 1, Teen Program . Pee eer tee e ners teeeeenetteenreeer eee 2 a. PETER had access to the Terms and Conditions .................. 3 2. Non-teen Program (Adult Program). oo... eee eee ccc cece ceeeeeeueees 3 3. Procedure - Ship to ALIGN. ooo... ccc cece ececcececeecceee 4 EXERCISE OR JURISDICTION «0.0.00. .cec eee ceeeecee cc eee eee eee eeee, 4 THE FORUM SELECTION CLAUSE IN THE TERMS AND CONDITIONS OF ALL OF THE ORDERS WHICH ARE THE SUBJECT OF THIS SUIT PROVIDES THAT CALIFORNIA COURTS HAVE EXCLUSIVE JURISDICTION OF THIS LITIGATION. A. SAM, AS WELL AS PETER, ARE SUBJECT TO THE FORUM SELECTION CLAUSE 2.0.2... 0s eos ceececeacccecececuecee 8 B. DEFENDANTS DO NOT ADDRESS THE FORUM SELECTION CLAUSE IN THEIR MOTION TO QUASH, AND PRESUMABLY THEY ARE WAIVING THIS ARGUMENT 000... eee ee cc esc cee ec ec ene eceeeeeees 9 ALTERNATIVELY, THIS COURT HAS LIMITED OR SPECIFIC PERSONAL JURISDICTION OVER THE DEFENDANTS A. The Purposeful Availment Requirement ..........., B. The Claim Arises Out of Or Is Related to Defendant’s California Activities ... 13 Cc. Jurisdiction Comports With Fair Play and Substantial Justice ............... 14 NOTIONS OF FAIR PLAY SUPPORT JURISDICTION IN CALIFORNIA ......... 14 CONCLUSION 1.0... ee eee eee cc cece eeeetretnetubiieeescee. 15 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONTABLE OF AUTHO! ES CASES: PAGES: Bancomer S.A. v. The Superior Court of Los Angeles County (Reilly) 44 Cal.App.4th 1450, 52 Cal.Rptr.2d 435 (Cal.App.2 Dist. 1996) .........0. e000 9 Boaz v. Boyle Co. 40 Cal.App.4th 700 (1995) 6... eee cccccceeuceeeeececeusececececs 10 Brown v. Watson, Jr. 207 Cal.App.3d 1306, 255 Cal.Rptr. 507 (Cal.App.2 Dist. 1989) ............002005 15 co mm IN DH Bw Dw Bugna v, Fike, Jr. 80 Cal. App.4th 229, 95 Cal.Rptr.2d 161 (Cal-App.1 Dist. 2000) .............2008 8,9 xs Burger King Corporation v, Rudezewicz 12 AT US, 462 (1985) occ eee ee ccc s ec eecneteeeenntenernnee 12,14 13 | Cornelison v. Chaney 14 (1976) 16 Cal.3d 143. ccc ccc eceaeeceeeccveneeaees 10, 13 15 | CQL Original Products Inc. v. National Hockey League Players’ etc. : 16 39 Cal.App.4th 1347 (Cal.App.4 Dist. 1995) 00.20.00. ccc ceccccccceuevececces 6,9 17} Feldman v. Google, Inc. 18 513 F.Supp.2d 229 (USDC, E.D. Pennsylvania, March 29 2007) ...............020- 6 19 }| Hall v. LaRonde 20 56 Cal.App.4th 1342, 66 Cal.Rptr.2d 399 (Cal.App.2 Dist. 1997) ............000005 12 Jewish Defense Organization, Inc. v. The Superior Court of Los Angeles 72 Cal.App.4th 1045, 85 Cal.Rtpr.2d 611 (Cal.App.2 Dist. 1999) Mihlon v, The Superior Court of Los Angeles County 169 Cal.App.3d 703, 215 Cal.Rptr. 442 (Cal.App.2 Dist. 1985) Net 2 Phone Ine. v, The Superior Court of Los Angeles County 109 Cal.App.4th 583 (Cal.App.2 Dist. 2003) ii MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONSchlessinger v. Holland America, N.V. 120 Cal.App.4th 552 (Cal.App.2 Dist. 2004) Lee eee eeececeer eee e ee 6 Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 29 Cal.Rptr.3d 33 .. Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434 oo... cence cee eeceecunenaes 10, 13, 14 STATUTES: California Practice Guide, “Civil Procedure Before Trial,” ( Weil and Brown, Jr.) CON DH bh ww S Section 3:225 Section 3:244 G8 iii MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONCot Aw PF WwW HN I. INTRODUCTION. Plaintiff ALIGN TECHNOLOGY, INC. (“ALIGN”) brings this collection action against Defendants PETER RIVOLI (“PETER”) and SAM RIVOLI (“SAM”), father and son orthondontists located in Rochester, New York. ALIGN is a California corporation whose headquarters and main offices are located in Santa Clara County. The business of ALIGN is to provide clear polymer alignors used to straighten teeth in increments in place of the use of braces. The suit is for $145,894.64 covering about 80-100 orders that were invoiced during 2009 which were provided by Plaintiff to Defendants. Plaintiff for nearly 10 years provided its product line to Defendants. Plaintiff provided to the Defendants over 1,000+ products to Defendants PETER and SAM during the period of about 2003 - 2009. Plaintiff's terms and conditions accompanies each order which had a forum selection clause providing that the federal and state courts in California had exclusive jurisdiction to adjudicate any dispute. Each order also provided that California law controlled. Defendants have made a motion to quash limited to the contention that the court does not have general nor specific jurisdiction over the Defendants. Defendants fail to address the forum selection clause, even though Align’s counsel advised Defendants’ New York counsel by letter dated 10/22/09 of the forum selection clause. A. FACTS. PETER and SAM RIVOLI are orthodontists in Rochester, New York and operate under the business name of Rivoli & Rivoli Orthodontics, which is a registered professional corporation. (Peter Rivoli Deposition, hereinafter “Peter Depo.,” 6:2-9.) The father, SAM, is semi-retired in that he works only about 17 hours a week for 8 months per year. (Sam Rivoli Deposition, hereinafter “Sam Depo.,” 6:12-18; 7:16-19.) Apparently, he is the only other orthodontist working in the offices of Rivoli & Rivoli. (Sam Depo., 28:15-17.) They have been placing orders with ALIGN for approximately ten years in which they have placed approximately 1,500-2,000 orders. (Peter Depo., 8-10:47, 13:9, Exh. 2.) During 2008, about 165 orders were placed with ALIGN, and 80-100 orders in 2009. (Peter Depo., 43:2-44:8; 47:20-22.) The orders which are the subject of this 1 a MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONsuit were invoiced in 2009. (Peter Depo., 9:8-11; 9:22-10:4; 10:18-25, Exh. 2.) The orders generally related to two basic programs: A teen program and a non-teen (or adult) program. A teen program began in 2009 and could only be ordered online. The other ALIGN programs still could be ordered by a paper request. (Peter Depo., 37:12-38:4; 38:24-39:5.) PETER ordered approximately 12-18 teen programs online in 2009. (Peter Depo., 39:23-25.) 1. Teen Program. Examples of some of the 12-18 online teen program orders are attached to PETER’S Deposition as Exhibits 6-1, 6-2, 6-5, 6-11, 6-14, 6-16 & 6-20. Copies of these computer forms are attached to the Declaration of Robert J. Perkiss marked Exhibit “A.” woo a AM FF YW WN The computer form is the same for each order and PETER’s procedure in completing these forms is the same. As an example, Exh. 6-1 (attached hereto as part of Exhibit “A ”), prior to PETER completing and submitting the “Treatment Summary/Plan,” has his staff complete step 1 of the computer form, which is a “doctor and patient form.” PETER than completes the “Treatment Summary/Plan” by checking the appropriate boxes and then he hits the submit button. (Peter Depo., 66:23-69:2.) At the end of the checked boxes, at the bottom of page 3 of the form, it states as follows: “This form and ClinCheck approval constitutes your final and complete prescription to Align Technology . Diagnosis and prescription are the decision and sole responsibility of the doctor ordering this appliance who waives any and all claims against Align and Employees of Align based on the failure of Invisalign to achieve a successful outcome, either alone or in combination with other appliances. Align Technology Inc. reserves the right to refuse any case. All cases submitted to Align Technology are governed by the details listed in the Terms and Conditions and the Pricing and Billing Policies. This form also constitutes legal and binding acceptance of financial responsibility according to the terms of the Pricing and Billing Policies in effect at the time of this case submission.” PETER acknowledged that he has never read this paragraph. (Peter Depo., 69:3-70:5.) The same scenario is seen in each of the other exhibits in which there is a teen order placed with ALIGN. Similarly, PETER acknowledges that he checked off the boxes, hit the submit button, but never read the terms starting with “This form and ClinCheck approval constitutes . . - at the bottom of page 3 on any of the submissions. (E.g., Exh. 6-2 (Peter Depo., 70:13-71:3), Exh. 6-5 (Peter Depo., 79:13-80:23), Exh. 6-9 (Peter Depo., 87:19-88:21; 88:25-89:9), Exh. 6-11 (Peter Depo., 90:13; 91:21-92:13), Exh. 6-14 (Peter Depo., 98:23-99:23), Exh. 6 -16 (Peter Depo., 2 i MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION106:22-107:23), Exh. 6-20 (Peter Depo., 112:16-113:10).) a. PETER had access to the Terms and Conditions. PETER testified that he had computer access to the Terms and Conditions referred to in the above quote found at the bottom of page 3 of the “Treatment Summary/Plan.” PETER had a computer in his office, online facilities, and was able to access to the Terms and Conditions to ALIGN’s online website, but he testified that he did not do it. (Peter Depo., 126:11-22.) 2. Non-teen Program (Adult Program). The balance of the remaining 80-100 orders which were invoiced in 2009 on which this suit is based would have been non-teen or adult wo oy DH ® YN program orders. (Peter Depo., 49:23-25; 43:2-44:8; 47:20-22.) PETER submitted these non-teen program orders by the use of paper orders, rather than online orders. (See, e.g., Exhs. 6-4, 6-6, 6-7, 6-8, 6-13, 7-1 through 7-15 to PETER’s Deposition which are attached to the Declaration of Robert J. Perkiss marked Exhibits “B” and “C”.) The B= 5 13 form of order is the same in each exhibit. It is entitled “Prescription & Diagnosis - FULL.” As an example, see Exh. 6-4 which PETER testified that he completed and then signed the “Prescription 15 |) & Diagnosis - FULL” form (Peter Depo., 75:5-18). Immediately after the signature line at the bottom of the page, it states: “This form and ClinCheck approval constitutes your final and complete prescription to Align Technology. Diagnosis and prescription are the decision and sole responsibility of the doctor ordering this appliance who waives any and all claims against Align and Employees of Align based on the failure of Invisalign to achieve a successful outcome, either alone or in combination with other appliances. Align Technology Inc. reserves the right to refuse any case. All cases submitted to Align Technology are governed by the details listed in the Terms and Conditions of Use for Invisalign and the Pricing and Billing Policies. This form also constitutes legal and binding acceptance of financial responsibility in accordance to the terms of the Pricing and Billing Policies in effect at the time of this case submission.” This is a standard form used for years with the same language. (Peter Depo., 77:16-79:9.) PETER also testified that he signed multiple other “Prescription & Diagnosis - FULL” forms with the same language, but did not read the Terms and Conditions and/or access them. (Peter Depo., Exh. 6-6, 81:5-25; Exh. 6-8, 87:4-10; Exh. 13, 94:5-95:18; Exhs. 7-1 through 7-15, 114:10-115:19 & 127:4-128:2.) 3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION3. Procedure - Ship to ALIGN. Whether it is a teen or non-teen order, the procedure after completing the order form is to take impressions, x-rays and photos, and place them in a box with the order form and ship it to ALIGN. (Peter Depo., 46:19-47:15.) PETER did this over the years for about 1,500 - 2,000 orders. In 2009, he did it approximately 80 - 100 times. (Peter Depo., 46:16-22.) Il. TERMS AND CONDITIONS PROVIDE FOR EXCLUSIVE JURISDICTION IN THE FEDERAL AND STATE COURTS IN CALIFORNIA. PETER testified that he had a computer in his office with online facilities and he was able to access the Terms and Conditions through ALIGN’s website, but he did not. (Peter Depo., 126:11-22.) He further testified that he never asked ALIGN for a copy of the Terms and Conditions and he testified that he never read the Terms and Conditions. (Peter Depo., 136:40-25.) The online Term & Conditions for 1/1/09 and 10/11/08 state identically under the provision “(DOCTOR WARRANTY” as follows: “Doctor will regularly review the Align website to verify that Doctor is aware of any changes to Align’s Pricing, Terms & Conditions, . . ep Each of those Terms & Conditions state under the “GOVERNING LAW” provision on the last page of the 1/1/09 & 10/11/08 “Pricing, Terms & Conditions for Invisalign Products” as follows: “GOVERNING LAW, These terms and conditions shall be governed by, and construed and interpreted in accordance with the laws of the state of California without regard to its conflict of law principles. The federal and state courts within the state of California shall have exclusive jurisdiction to adjudicate any dispute arising out of these terms and conditions.” (See Exhs. 8-5 and 8-6 to Peter Depo. attached to Perkiss Declaration as part of Exhibit “D.”) II. LEGAL ARGUMENT. IN DEFENDING THE MOTION TO QUASH, PLAINTIFF NEED NOT PROVE THE TRUTH OF THE ALLEGATIONS CONSTITUTING THE CAUSE OF ACTION, THEY ARE PRESUMED TRUE FOR PURPOSES OF PLAINTIFF JUSTIFYING THE EXERCISE OR JURISDICTION. Plaintiff ALIGN alleges that the liability of these Defendants, and each of them, as alleged at paragraph 4 of the Complaint, page 2, lines 8-12, as follows: 4. Prior to the commencement of this action within this judicial district, 4 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONDefendants, and each of them, became and still are indebted to Plaintiff who sold and delivered to said Defendants, and each of the same, at their special instance and request, and or furnished, GOODS, WARES and. MERCHANDISE, and related products thereon for use in the operation of the Defendant’s business . . .” Plaintiff has also pled in paragraph 7 of the Complaint that the Defendants, and each of - woN them, are agents of each other, or more specifically, each of the Defendants is liable on the orders (ie., contracts) made by the other. The Complaint pleads at par. 7, page 2, lines 25-27, as follows: 7 7. Atall times herein mentioned, Defendants, and each of them, are agents, employees and servants of each other and have undertaken the acts as described herein in the course and scope of their agency and/or employment.” In defending a quash motion, Plaintiff need not prove these allegations to justify own nr Aw jurisdiction. They are presumed true for purposes of the motion. Mihlon v. The Superior Court of Los Angeles County, 169 Cal.App.3d 703, 215 Cal.Rptr. 442 (Cal.App.2 Dist. 1985) held as follows: “an unverified complaint has no evidentiary value in determination of personal jurisdiction (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212, 114 Cal.Rptr. 743), but such pleading has limited cognizable significance as "a material fact, in that it defines the cause of action, the nature of ‘which has some bearing upon the decision whether it is fair and reasonable to require the nonresident parties to appear and defend in this state. But the pleader has no burden of proving the truth of the allegations constituting the causes of action in order to justify the exercise of jurisdiction over nonresident parties." (Lundgren v. Superior Court (1980) 111 Cal.App.3d 477, 485, 168 Cal. Rptr. 717.) The plaintiff need only present facts demonstrating that the conduct of ‘defendants related to the pleaded causes is such as to constitute constitutionally cognizable "minimum contacts." Under the pleaded causes of action, each of the ‘Defendants becomes liable under the contract and subject to its terms entered into by the co-Defendant. IV. THE FORUM SELECTION CLAUSE IN THE TERMS AND CONDITIONS OF ALL — THE ORDERS WHICH ARE THE ee SUIT PROVIDES On. The current suit is based on 2009 invoices resulting from orders, substantially all of which were placed in 2009, either by signed orders/contracts or made directly online. Each of these orders is subject to various terms and conditions which include a forum selection clause providing for exclusive jurisdiction to California courts over this litigation. The written order for non-teen programs provides below the doctor’s signature a reference to the Terms and Conditions as being part of the contract, as does the online order which 5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONreferences the Terms and Conditions as part of the order which comes immediately after the last box was checked off by the doctor in describing the treatment plan. See Deposition Exhs, 6-1 & 6.4 attached as part of Exhibits “A” and “B” to the Perkiss Declaration as examples. The Terms and Conditions were amended from time to time, but over the last 7 or 8 years included the same forum selection clause. The Terms and Conditions commencing on 10/11/08 and 1/9/09 marked as Exhibits 8-5 and 8-6 in the deposition are attached as Exhibit “D” to the Perkiss Declaration. The “GOVERNING LAW” section that “. . . The federal and state courts within the state of California shall have exclusive jurisdiction to adjudicate any dispute arising out of these terms and conditions.” Under California law, a forum selection clause is presumed valid and places the burden of proof on the party seeking to overturn the forum selection clause. See Schlessinger v. Holland America, N.V.,120 Cal.App.4th 552, 558 (Cal.App.2 Dist. 2004); also CQL Original Products Ine. v. National Hockey League Players’ etc., 39 Cal.App.4th 1347, 1354 (Cal.App.4 Dist. 1995). Actual notice of the forum selection clause is not required to enforceable. The party to be charged merely has to have an opportunity to read the clause to be bound by it. In Schlessinger v. Holland America, N.V., supra, the court in reviewing several other steamship cases stated that the ship’s passengers merely had to have the opportunity to read the terms and conditions as follows: “... Indeed, contractual clauses have been affirmed where the passenger never opened the ticket packet before boarding. (Geller v. Holland-America Line (2d Cir. 1962) 298 F.2d 618, 619 [limitations period); Ferketich v. Carnival Cruise Lines (E.D.Pa. 2002) 2002 WL 31371977, *4 [passenger had adequate notice of terms of ticket contract, including forum selection clause, because she received ticket before boarding, even though she would have forfeited entire cost of ticket if she had cancelled on receipt thereof]."!y" (P 559) In the Schlessinger v. Holland America, N.V. case, a copy of the form of cruise contract would have been provided upon request, or could have been viewed on the website. The court still upheld the forum selection clause. Thus, it is access, not notice of the forum selection clause, which binds the contracting party. See also Feldman v. Google, Inc., 513 F.Supp.2d 229 (USDC, E.D. Pennsylvania, March 29, 2007), referring to California law, and the court stated as follows: “The type of contract at issue here is commonly referred to as a "clickwrap" agreement. A clickwrap agreement appears on an internet webpage and requires 6 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONthat a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction. Citations omitted] Even though they are electronic, clickwrap agreements are considered to be writings because they are printable and storable. [Citation omitted] (Page 236) To determine whether a clickwrap agreement is enforceable, courts presented with the issue apply traditional principles of contract law and focus on whether the plaintiffs had reasonable notice of and manifested assent to the clickwrap agreement.[{Citations omitted] Absent a showing of fraud, failure to read an enforceable clickwrap agreement, as with any binding contract, will not excuse compliance with its terms. [Citation omitted)" In Net 2 Phone Inc. v, The Superior Court of Los Angeles County, 109 Cal.App.4th 583 at 588-589 (Cal.App.2 Dist. 2003), the court stated: “Asa threshold matter, we find that the forum selection clause would be enforceable had Net2Phone's customers filed this action themselves. We perceive no unfairness in Net2Phone's requirement that certain contractual terms must be accessed via hyperlink, a common practice in internet business. The fact that the forum selection clause may have been a "take it or leave it" proposition, and not vigorously "bargained for" as Consumer Cause contends, does not make the clause peenioeeale ‘Carnival Cruise Lines, Inc. v. Shute, supra,499 U.S. at pp. 593, 1)” coat AY FY WN In this case, both the paper orders signed by the doctor, as well as those orders submitted over the Internet, referenced that those orders were subject to Terms and Conditions, and which : included the forum selection clause. The reference on the Internet orders when placing the orders provided the RIVOLIs the opportunity to access the Terms and Conditions via a hyperlink in which the Terms and Conditions were underligned. Similarly, the reference to the Terms and Conditions in the paper order could have been easily obtained by making a request to Plaintiff, or again accessing them on ALIGN’s website. Defendants are sophisticated consumers of Plaintiff's product line, in which over 6 years plus, they purchased approximately $2,060,000 in total dollar volume. In light of the total dollar volume, number of orders, uniqueness of Plaintiff's product line, weekly frequency of Defendants interacting with Plaintiff, and Defendants’ position as a spokesman for Plaintiff, the court can infer that Defendants were informed and educated consumers of Plaintiff's product line. PETER admits that he never requested a copy of the Terms and Conditions and, indeed, states that he was too busy to be concerned with them; i.e., he elected to ignore them. However, he is still subject to those Terms and Conditions, including the forum selection clause which provides 7 aE, +] MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONthat California courts have exclusive jurisdiction over this litigation. Neither PETER nor SAM can seek to escape these contractual terms by an act of deliberate claimed ignorance. A. SAM, AS WELL, AS PETER, ARE SUBJECT TO THE FORUM SELECTION CLAUSE. Although SAM may argue that he is not bound by the forum selection clause in that he does not recall signing any paper orders or submitting any orders over the Internet for ALIGN products. However, this is of no avail. In Net 2 Phone Inc. v. The Superior Court of Los Angeles County, supra at page 588, the court stated: “A forum selection clause may also be enforced against a plaintiff who is not a to the contract in question if the plaintiff is “closely related to the contrac! relationship.” The plaintiff challenging the forum selection clause has the burden of showing, in response to a defendant's motion to stay or dismiss, that enforcement of the clause would be unreasonable under the circumstances. (Lu v. Dryclean-U.S.A. of California, supra, \1 Cal.App.4th at p. 1493.)” In Bugua v. Fike, Jr., 80 Cal.App.Ath 229, 233, 95 Cal.Rptr.2d 161 (Cal-App.1 Dist. oot DA HW e WN Ke ee oe oS nN = oO 2000), the court held in that case that where the alleged conduct was closely related to the contractual relationship, and where there was an allegation that the parties were the alter egos of z each other, the fact that one party did not sign the agreement did not render the forum selection _ wn clause unenforceable. Simplistically, the name of the dental firm is “Rivoli & Rivoli,” and from e a the viewpoint of the purchasing public, vendors such as Plaintiff, the state of New York and its _ a regulators, PETER and SAM hold themselves out as partners and joint participants. - oo SAM’s actual participation gives credence to the appearance that he is PETER’s partner or © joint venturer. SAM acknowledges that he works in the practice approximately 17 hours a week ny oy = 5 for 8 months of the year and that, although he can’t remember, may have placed an order with ALIGN, but in any case, assists PETER in handling some of these cases. Any patient on the NnoN ao nv premises would clearly witness SAM’s appearance, Plaintiff alleges that SAM and PETER are agents of each other and would otherwise be 2 subject to the contracts and orders entered into by each party, which would include any forum nN a selection clause. (Complaint, {4 & 7.) Miklon v. The Superior Court of Los Angeles County, » a supra. That case held that plaintiff need only present facts demonstrating that the defendant’s yon on 8 “MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT" "S$ MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONconduct related to the pled causes of action constituted “minimum contacts,” it did not have to prove the allegations constituting the causes of action. Here, the first cause of action alleges that each of the parties are agents of the other. Thus, any contract entered into by one party would necessarily subject the other party to the contract and its terms and conditions, including a forum selection clause. In other words, a forum selection clause may be enforced against a non-signature who is “closely related” to the contractual relationship involved, See Bancomer S.A. ¥. The Superior Court of Los Angeles County (Reilly), 44 Cal.App.4th 1450, 1459, 52 Cal.Rptr.2d 435 (Cal.App.2 Dist. 1996); Bugna v. Fike, Jr., 80 Cal.App.4th 229, 233, 95 Cal-Rptr.2d 161, 165 oon A HW WN (Cal.App.1 Dist. 2000). Defendants have the burden of proof in defeating the forum selection clause. Defendants in this case have a “heavy burden” proving any enforcement of this forum selection clause would be unreasonable under the circumstances of the case. See Bancomer S.A. v. The Superior Court of Los Angeles County (Reilly), 44 Cal.App.4th 1450, 1457, 52 Cal.Rptr.2d 435, 439. In effect, the defendant must establish that the designated forum would be so inconvenient that it would effectively deny them their day in court. See CQL Original Products Inc. v. National Hockey League Players’ Assn., supra where the court stated that the party must show that the forum that was selected “would be unavailable or unable to accomplish substantial justice.” No such claim has been made nor could it be made. B. DEFENDANTS DO NOT ADDRESS THE FORUM SELECTION CLAUSE IN THEIR MOTION TO QUASH, AND PRESUMABLY THEY ARE WAIVING THIS ARGUMENT. Defendants’ motion to quash based on lack of jurisdiction does not address the forum selection clause which they were aware of at all times prior to making this motion. Plaintiff's counsel on 10/22/09 wrote Defendants’ New York attorney that jurisdiction was properly laid in California on the basis of the forum selection clause and quoting the clause as set forth in the Terms and Conditions. (A copy of that letter is attached as Exhibit “E” to Perkiss Declaration.) Notwithstanding, Defendants declined to address the forum selection clause. 9 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONV. TH URT HAS GENE] SDICTION. Defendant has made a motion to quash based on lack of personal jurisdiction. Personal jurisdiction is of two types, namely, general and specific. General jurisdiction exists where the activity of the Defendant, a non-resident, are substantial, continuous and systematic, or extensive and wide-ranging. See Boaz v. Boyle Co., 40 Cal.App.4th 700, 717 (1995). Where a non- resident’s commercial activities impact Califomia on a “substantial, continuous and systematic basis,” they are subject to general jurisdiction, and the party may be sued on any cause of action, even on causes of action unrelated to their activities within the state. Cornelison v. Chaney Cowon Aw F YN (1976) 16 Cal.3d 143, 147; Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446. General jurisdiction requires the non-resident’s contact with California must be substantial, °o continuous and systematic. Plaintiff and Defendants maintained for nearly ten years a continuous - two-way street. Defendants shipped to Plaintiff what amounts to be a small, telephone book size ~ Nn box containing x-rays, impressions, and a Treatment Plan. Plaintiff works up this package and ROG presents a proposed product to Defendants. Defendants approve or disapprove electronically, and _ a if approved, Plaintiff ships the product to the Defendants. This repartee between Plaintiff and Defendants has been going on for ten years and during the ten years, the parties have had this type a of communication on a weekly, and from time to time, daily basis. Unlike most jurisdictional a battles in which Defendants claim a one-way street of Plaintiff providing product to Defendants in & their home state, here, every separate order is evidenced by a mutuality of communication, both p= Ss & emanating from California and from New York. nr Defendant acknowledges that he has been ordering product from Plaintiff for N nv approximately ten years. He is aware that Plaintiff's headquarter office, as well as its main office nN a during this period of time have been located in California. He also acknowledges that over this wv & period of time he has placed approximately 1,500 - 2,000 orders, of which approximately 80 - 100 Ny am of those were placed in 2009 and which forms the subject matter of this dispute. Defendant y a acknowledges that he placed these orders in paper form or online and then forwarded to Plaintiff xX a x-rays, photographs and impressions for Plaintiff to process. During most of this period, the x- yn oO 10 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTIONrays, photographs and impressions were forwarded to California. More recently, these x-rays, photographs and impressions have been forwarded to Texas. Notwithstanding, the orders are placed with ALIGN who is in Califomia who controls, monitors, invoices, and receives payment, here in California. Defendants bounced a series of checks, deposited in ALIGN’s local bank. The parties have not entered into a casual relationship, but have entered into a substantial, continuous and systematic commercial relationship which impacts ALIGN in California. They have placed some 1,500 - 2,000 orders with ALIGN located in California over the past ten years. During most of this time, the processing occurred in Califomnia. More recently, some of the wo on Aw FY HN processing and manufacturing has occurred outside of Califomia. However, that does not change or alter the substantial, continuous and systematic relationship between the parties on the impact on ALIGN in Califomia. On this additional ground, the motion to quash for lack of personal jurisdiction should be denied. VI. ALTERNATIVELY, THIS COURT HAS LIMITED OR SPECIFIC PERSONAL JURISDICTION OVER THE DEFENDANTS. Specific or limited jurisdiction requires that the out-of-state defendant purposefully establish contacts with the forum state, that Plaintiff's cause of action “arises out of” or is “related to” defendant’s contacts with the forum, and complies with “fair play and substantial justice.” See California Practice Guide, “Civil Procedure Before Trial,” ( Weil and Brown, Jr.) Section 3:225. A. The Purposeful Availment Requirement. Purposeful availment occurs where the non-resident defendant purposefully directs its activities at the California resident. Specifically, the courts have cautioned against a too narrow interpretation of the purposeful availment test. The court stated in Snowney v. Harralt’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1067, 29 Cal.Rptr.3d 33, as follows: ts, Pref avaiinent may ci en oath gament eit whenever the defendant purposefully and voluntarily ‘directs its activities toward the forum state in an effort to obtain a benefit from that state.” Whether the orders were paper orders or Internet orders, they were orders directed at ALIGN whose headquarters and main office are located in Santa Clara, California. Defendant i MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO OUASH FOR LACK OF PERSONAL JURISDICTIONinitiated the orders by mail or over the Internet. It was the California office that controlled the granting of credit, insured the completion of the orders, would have ultimately handled any disputes and/or modifications of said orders, issued invoices, and received payment. Although part of the processing, i.e. manufacturing, may have occurred outside of California, the orders, the completion of, the invoicing, and the receipt of payment, all occur in California. This has occurred some 1,5000 - 2,000 times over the last approximately ten years and approximately 100 times in 2009 alone. It is the Defendants who have directed their activities to ALIGN in California. An occasional visit by a sales representative in Defendants’ office does not change that in 2009. There were 80-100 orders in 2009. In fact, PETER testified that the salesman appeared only a few times. Even the means of communications is not determinative. “Minimum contacts” may be created by a non-resident’s use of the mail, telephone or electronic mail. See Hall v. LaRonde. 56 Cal.App.4th 1342, 1344, 66 Cal.Rptr.2d 399, 400 (Cal.App.2 Dist. 1997). Although invoking California law is not a requirement of purposeful availment, it is indicative that the Defendants have purposefully availed themselves of California law where there is a provision in the terms and conditions of any contract providing that California law controls. As indicated above in the statement of facts, the terms and conditions under the provision GOVERNING LAW specifically provides that California law controls. In Burger King Corporation v. Rudezewicz, 471 U.S. 462 at 482 (1985), the court stated as follows: Although such a provision standing along would be insufficient to confer jurisdiction, we believe that, when combined with the 20-year interdependent relationship Rudzewicz established with Burger King’s Miami headquarters, it reinforced his deliberate affiliation with the forum state and the reasonable dase re purposely avaied binaclf of tne benefit and