Filed 1/14/14 Butler v. Mararishi U. of Management CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
KHALDUN BUTLER et al.,
Plaintiffs and Appellants, E054846
v. (Super.Ct.No. INC056979)
MAHARISHI UNIVERSITY OF OPINION MANAGEMENT,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Randall Donald White,
Judge. Affirmed.
Domine Adams, Jason M. Adams, Jeffrey B. Domine, Ryan P. Sheahan; Belin
McCormick, Stephen R. Eckley, David W. Nelmark; Coppola, McConville, Coppola,
Hockenberg & Scalise and Lawrence F. Scalise for Plaintiffs and Appellants.
Musick, Peeler & Garrett, Cheryl A. Orr and Kent A. Halkett for Defendant and
Respondent.
1 I. INTRODUCTION
The present appeal deals with whether the Riverside County Superior Court can
exercise its jurisdiction over defendant and respondent, Maharishi University
Management (MUM), an Iowa corporation and California nonresident. We conclude the
court did not have personal jurisdiction over MUM and properly dismissed plaintiffs’
complaint against MUM for lack of personal jurisdiction.
In August or September 2003, Levi Butler, a California resident, enrolled as a
student at MUM in Iowa. In March 2004, Shuvender Sem, another student at MUM,
stabbed Levi with a knife in a campus dining hall, and Levi died from his injuries. Levi
was 19 years old. On February 24, 2006, Levi’s estate, through its personal
representative Joshua Butler, Levi’s brother, filed a wrongful death action in the United
States District Court for the Southern District of Iowa against MUM and other defendants
(the Iowa action). Three days later, plaintiffs and appellants, Khaldun Butler and Evelyn
Butler, Levi’s parents, filed the present action in the Riverside County Superior Court
against MUM and other defendants, claiming damages for wrongful death, negligence,
premises liability, fraudulent misrepresentation, negligent misrepresentation, breach of
contract and violations of the Consumer Legal Remedies Act and unfair business
practices not recoverable in the Iowa action.1
1 Plaintiffs maintain they could not have been made whole by bringing their claims against MUM in Iowa. When the limitations period on plaintiffs’ claims expired in 2006, two years after Levi’s 2004 death, Iowa law did not allow the parents of an adult decedent over the age of 18, such as Levi, to recover noneconomic damages. (Counts v. Hospitality Employees, Inc. (Iowa 1994) 518 N.W.2d 358, 361.) In 2007, the Iowa [footnote continued on next page]
2 On MUM’s motion, the present action was removed to the United States District
Court for the Central District of California in March 2006, but was remanded to the
superior court less than a month later. Before remand, MUM moved to transfer venue to
the federal court in Iowa, where the Iowa action was pending. Upon remand, the superior
court stayed the present state court action pending the outcome of the Iowa action. The
stay was lifted after the Iowa action was resolved. Then, on September 21, 2011, and
pursuant to MUM’s motion, the superior court dismissed plaintiffs’ complaint for lack of
personal jurisdiction over MUM and other nonresident defendants.
Plaintiffs appeal from the judgment dismissing the state court action. They claim
MUM waived its right to object to the state court’s personal jurisdiction when MUM
moved to transfer venue of the present action to the federal district court in Iowa. They
also claim the superior court erroneously concluded that MUM was not subject to the
superior court’s general or specific jurisdiction. We reject each of these claims and
affirm the judgment of dismissal.
II. BACKGROUND
A. The Allegations of Plaintiffs’ Complaint
Levi Butler was born in 1985 and is plaintiffs’ youngest son. In July 2003, Levi’s
brother suggested he consider attending MUM because of its emphasis on spreading
[footnote continued from previous page] legislature adopted Iowa Code section 613.15A, allowing the parents of an adult child to recover damages for loss of companionship. By 2007, it was too late for plaintiffs to file an action in Iowa for Levi’s loss of companionship because the two-year limitations period had expired.
3 peace, resolving conflicts, and living sustainably. In August 2003, MUM notified Levi
that he had been accepted for admission. The guiding philosophy and core curriculum of
MUM are based on the teachings of its founder, Maharishi Mahesh Yogi. MUM’s
primary mission is to teach the principles of Transcendental Meditation (TM). Students
at MUM are indoctrinated through a mandatory regimen of twice daily meditation,
coupled with intensive studying of the teachings of the “Maharishi.”
In January 2004, another new student, Shuvender Sem, arrived at MUM’s Iowa
campus. Sem, then age 24, had a history of mental illness and violent assaults. MUM
allegedly failed to identify Sem’s past history of violence and mental illness before he
stabbed Levi to death on March 1, 2004. During the six weeks Sem was on campus, his
behavior toward other students became increasingly bizarre and aggressive. He
threatened to kill a fellow student by bashing his head into a sink, then stomping on him.
On March 1, 2004, and before he attacked Levi, Sem attacked another student
while a group of students and faculty members were participating in a meditation class.
Sem became agitated and left the room, returned a few moments later, and stabbed the
other student in the face and throat with a pen. Another student grabbed Sem to stop the
attack.
A few faculty members, including Dr. Robert Boyer, a clinical psychologist, were
notified of the attack. Dr. Boyer advised that Sem was dangerous and should be kept off
campus. The faculty did not inform other students of the attack, nor did they notify state
officials. Instead, MUM handled the matter internally. MUM tried unsuccessfully to
4 find a student living off campus who would be willing to lodge Sem for a probationary
period. MUM decided to return Sem to his home in Philadelphia.
Sem was placed in the custody of Joel Wysong, the Dean of Men at MUM.
Wysong took Sem to Wysong’s apartment on campus. Wysong called Sem’s parents and
arranged for him to fly home to Philadelphia the next day. At his apartment, Wysong
observed Sem clapping his hands loudly and pacing about. Wysong left Sem in the
kitchen while he went to another room to meditate. Wysong heard Sem rummaging
around in kitchen drawers and, after meditating, he noticed Sem had left the apartment.
He did not notify campus security or state officials; he went to find Sem himself. He
found Sem at a campus dining hall, but rather than removing Sem or requesting security,
he allowed Sem to mingle with the other students.
In the dining hall, Sem moved from a table with several students to a seat next to
Levi, and asked Levi where he was from. As Levi responded, Sem jumped up and started
to scream obscenities; he pulled a knife from his coat, taken from Wysong’s kitchen, and
began stabbing Levi in the chest. Levi was stabbed multiple times in the heart, lung, and
liver. The blade broke off in Levi’s chest and Levi died later that evening.
B. Procedural History
As indicated, plaintiffs filed the present state court action on February 27, 2006.
On March 29, 2006, MUM made a special appearance in the state court action by filing a
notice of removal to federal court. In the notice, MUM specifically reserved the right to
object to the state court’s personal jurisdiction.
5 Subsequently, MUM filed in the federal court a motion for an order: (1)
dismissing it from the action for lack of personal jurisdiction, or, alternatively, (2)
transferring the action to the Southern District of Iowa. The district court remanded the
matter to the Riverside County Superior Court for lack of complete diversity and ruled
that MUM’s motion to dismiss or, in the alternative, to transfer, was moot.
On June 8, 2006, Maharishi Vedic Education Development Corporation (MVED)
and Maharishi Vedic University (California) filed a motion to stay the entire action on the
ground of forum non conveniens. The superior court granted the motion pending the
outcome of the Iowa action so as to avoid duplicate litigation and potential inconsistent
findings of fact and conclusions of law.
In 2008, the District Court of Iowa granted MVED’s motion for summary
judgment on the ground it was not the alter ego of MUM. Thereafter, MUM settled the
Iowa action and in early 2009 the matter was dismissed.
Shortly thereafter, the Riverside County Superior Court lifted the stay in this
action and granted plaintiffs’ request to propound additional discovery on the jurisdiction
issue. After MVED and the other defendants filed a joint demurrer, plaintiffs dismissed
them without prejudice.
Approximately two years later, the trial court granted MUM’s motion to dismiss
the present action for lack of personal jurisdiction. The court concluded that plaintiffs
did not meet their burden of showing by a preponderance of the evidence that minimum
contacts existed between MUM and California, the forum state. The court ruled that
6 MUM’s commercial activity did not impact California on a “substantial, continuours [sic]
and systematic basis,” and plaintiffs’ causes of action did not arise out of nor were they
related to MUM’s contacts with the forum state.
III. DISCUSSION
A. Jurisdictional Requirements; Standard of Review
“California’s long-arm statute [Code of Civil Procedure section 410.10] authorizes
California courts to exercise jurisdiction on any basis not inconsistent with the
Constitution of the United States or the Constitution of California.” (Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons).) The United States
Supreme Court describes two bases for limiting a state’s exercise of personal jurisdiction
over nonresidents. (Id. at p. 445.) “The first recognizes limits on a state’s assertion of
jurisdiction designed to ensure fairness to nonresident defendants. The second recognizes
the mutual limits on the states’ sovereign power to exercise jurisdiction in a federal
system.” (Ibid.)
“‘The exercise of jurisdiction over a nonresident defendant comports with these
Constitutions “if the defendant has such minimum contacts with the state that the
assertion of jurisdiction does not violate ‘“traditional notions of fair play and substantial
justice.”’”’ [Citations.]” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th
1054, 1061 (Snowney).) “[T]he minimum contacts test asks ‘whether the “quality and
nature” of the defendant’s activity is such that it is “reasonable” and “fair” to require him
to conduct his defense in that State.’ [Citations.] The test ‘is not susceptible of
7 mechanical application; rather, the facts of each case must be weighed to determine
whether the requisite “affiliating circumstances” are present.’ [Citation.]” (Ibid.)
“Personal jurisdiction may be either general or specific. A nonresident defendant
may be subject to the general jurisdiction of the forum if his or her contacts in the forum
state are ‘substantial . . . continuous and systematic.’ [Citations.] . . . ‘[I]t is not
necessary that the specific cause of action alleged be connected with the defendant’s
business relationship to the forum.’ [Citations.] Such a defendant’s contacts with the
forum are so wide-ranging that they take the place of physical presence in the forum as a
basis for jurisdiction.” (Vons, supra, 14 Cal.4th at pp. 445-446.)
“‘When determining whether specific jurisdiction exists, courts consider the
“‘relationship among the defendant, the forum, and the litigation.’” [Citations.]’”
(Snowney, supra, 35 Cal.4th at p. 1062.)
Specific jurisdiction exists where “(1) ‘“the defendant has purposefully availed
[itself] of forum benefits”’ with respect to the matter in controversy, (2) ‘“the
‘controversy is related to or “arises out of” [the] defendant’s contacts with the forum,’”’
and (3) the exercise of jurisdiction would comport with fair play and substantial justice.”
(DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090; Pavlovich v. Superior
Court (2002) 29 Cal.4th 262, 269; Vons, supra, 14 Cal.4th at pp. 446-447; see also
Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472, 476.)
When a nonresident defendant challenges the state court’s jurisdiction, the
plaintiff has the initial burden of “demonstrating facts justifying the exercise of
8 jurisdiction.” (Vons, supra, 14 Cal.4th at p. 449; Pavlovich v. Superior Court, supra, 29
Cal.4th at p. 273.) If these facts are shown, the defendant must demonstrate that the
forum state court’s exercise of jurisdiction over the defendant would be unreasonable.
(Pavlovich v. Superior Court, supra, at p. 273.) When, as here, the relevant evidence is
not in conflict, the personal jurisdiction issue is purely one of law, and we independently
review the record and determine whether jurisdiction is proper. (Ibid.; Hall v. LaRonde
(1997) 56 Cal.App.4th 1342, 1346.)
B. MUM Did Not Waive Its Right to Contest Personal Jurisdiction
Plaintiffs first claim that MUM waived its right to object to the state court’s
personal jurisdiction over it in the present action by making a general appearance in the
local federal district court. Plaintiffs claim MUM made a general appearance in the local
federal district court when it asked that court to dismiss the present action for lack of
personal jurisdiction or transfer venue to the federal court in Iowa—before the federal
district court remanded the matter back to the state court. We disagree. MUM only made
a special appearance in the local federal district court and did not waive its right to object
to the court’s personal jurisdiction over it by joining its motion to dismiss with a motion
to transfer venue based on forum non conveniens.
A general appearance in an action operates as a consent to the jurisdiction of the
person. (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) “It has long been the
rule in California that ‘a party waives any objection to the court’s exercise of personal
jurisdiction when the party makes a general appearance in the action.’” (Air Machine
9 Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 419 (Air Machine).) A party
makes a general appearance when it “engages in acts or activities that recognize the
court’s jurisdiction over the party.” (Id. at p. 426.)
Code of Civil Procedure section 10142 provides that: “A defendant appears in an
action when the defendant answers, demurs, files a notice of motion to strike, files a
notice of motion to transfer [venue] pursuant to Section 396b, . . . gives the plaintiff
written notice of appearance, or when an attorney gives notice of appearance for the
defendant. . . .” (Italics added.) “‘The statutory list of acts constituting an appearance
[under section 1014] is not exclusive; “rather the term appearance may apply to various
acts which, under all of the circumstances, are deemed to confer jurisdiction of the
person. . . .” [Citation.]’” (Air Machine, supra, 186 Cal.App.4th at p. 420; Dial 800 v.
Fesbinder, supra, 118 Cal.App.4th at p. 53 [noting California courts have found general
appearances under varying circumstances in which the defendant seeks affirmative
relief].)
Notwithstanding that a defendant may make a general appearance by filing a
motion to transfer on the ground of inconvenient forum, the transfer motion does not
constitute a general appearance if, prior to or simultaneous with the filing of the transfer
motion, the party seeks to dismiss the action for lack of personal jurisdiction. (Air
2All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
10 Machine, supra, 186 Cal.App.4th at p. 426; see § 430.90, subd. (a)(1).)3 This rule
mirrors Federal Rules of Civil Procedure (28 U.S.C.A.) rule 12(b): “No defense or
objection is waived by joining it with one or more other defenses or objections in a
responsive pleading or in a motion.”
As indicated, MUM initially removed the present state court action to the local
federal district court. In its initial pleading to that court, MUM sought to have the case
dismissed for lack of personal jurisdiction and, in the alternative, moved to transfer the
case to the federal court in Iowa based on inconvenient forum or forum non conveniens.
Because MUM filed its motion to dismiss simultaneously with its motion to transfer, it
did not waive its right to assert a lack of personal jurisdiction following remand of the
matter to the state court. Two California cases are instructive on this point.
In Air Machine, the plaintiffs filed a complaint for damages in the Superior Court
of San Diego County against the defendants, Air Machine and Health Tech Resources,
Inc. (two Washington businesses). (Air Machine, supra, 186 Cal.App.4th at p. 417.) Air
Machine was dismissed for lack of minimum contacts with California. Health Tech
Resources, Inc. also moved to quash service of the summons for lack of personal
jurisdiction, but shortly after it filed its motion to quash service, it served on the plaintiff
a section 998 offer to compromise and settle the action. (Id. at p. 418.) In the trial
3 When, as here, a defendant removes a civil action to federal court without filing a response in the original court, and the case is later remanded for improper removal, the defendant retains the ability to file a motion to dismiss for lack of personal jurisdiction unless he or she made a general appearance in either the state court or the federal court. (§ 430.90, subd. (a)(1).)
11 court’s view, the section 998 offer amounted to Health Tech Resources, Inc. availing
itself of the laws of the State of California. The trial court accordingly found that Health
Tech Resources, Inc. made a general appearance (Ibid.) Health Tech Resources, Inc.
petitioned for a writ of mandate seeking relief from the trial court’s order. (Id. at p. 419.)
In concluding that Health Tech Resources, Inc. did not make a general
appearance by serving the section 998 offer, the court in Air Machine discussed
section 418.10 in detail. (Air Machine, supra, 186 Cal.App.4th at pp. 425-427.)
Among other things, the statute allows a defendant to move to quash service of
summons for lack of personal jurisdiction (§ 418.10, subd. (a)(1)), and move to
stay or dismiss an action based on inconvenient forum (id., subd. (a)(2)).
Subdivision (e)(1) of section 418.10 states: “Notwithstanding Section 1014, no
act by a party who makes a motion under this section, including filing an answer,
demurrer, or motion to strike constitutes an appearance, unless the court denies the
motion made under this section. If the court denies the motion made under this
section, the defendant or cross-defendant is not deemed to have generally appeared
until entry of the order denying the motion.” (Italics added.)
In construing this language, Air Machine concluded that if a motion to
dismiss for lack of personal jurisdiction is filed prior to or simultaneously with
another pleading, the party will not be deemed to have made a general appearance
in the action. (Air Machine, supra, 186 Cal.App.4th at p. 426.) The court
explained: “[A] party . . . will be deemed to have ‘generally appeared’ in the
12 action if the party fails to file a motion under subdivision (a) of section 418.10 and
otherwise engages in acts or activities that recognize the court’s jurisdiction over
the party. If, however, a party files a motion under that subdivision before or
simultaneously with an act that would otherwise constitute a general appearance,
under subdivision (e) of section 418.10 that party will not be deemed to have
‘generally appeared’ in the action, but instead will be deemed to have ‘specially
appeared’ and not waived the party’s jurisdictional challenge.” (Ibid.)
Also instructive is Roy v. Superior Court (2005) 127 Cal.App.4th 337 [Fourth
Dist., Div. Two]. There, the plaintiff brought an action in state court against an Illinois
corporation and several of its officers, directors, and shareholders. (Id. at p. 340.) In a
joint answer, the defendants asserted 24 affirmative defenses, including one stating:
“‘The court lacks jurisdiction over these answering defendants because the acts
complained of occurred outside of the State of California, these answering defendants are
not residents of . . . California, and there was [sic] no contacts with the State of California
to give the court jurisdiction over these answering defendants.’” (Ibid.) But rather than
immediately act on this defense, the answering defendants actively participated in the
litigation by filing a case management statement, attending conferences, propounding
discovery and filing motions to compel when they were not satisfied with the answers,
requesting continuances, and filing a motion for summary judgment. (Ibid.) Finally, the
defendants moved to dismiss the action for lack of personal jurisdiction shortly before the
hearing on its motion for summary judgment. (Ibid.)
13 The Roy court upheld the trial court’s order denying the defendants’ motion to
dismiss, concluding that the defendants submitted to California’s jurisdiction by filing an
answer and participating in the litigation. (Roy v. Superior Court, supra, 127
Cal.App.4th at pp. 340, 346.) The court pointed out that the defendants had “‘buried’
their jurisdictional challenge in the middle of literally dozens of mostly boilerplate
‘defenses.’ They proceeded to vigorously . . . litigate the action, which generated the
filing of numerous motions and many appearances, and twice proceeded to the point of
setting a trial date. Only then did defendants bring their jurisdictional objection up for
actual review and decision . . . . [¶] . . . [B]y requiring that the issue of jurisdiction be
raised and finally resolved at an early stage, California’s historical approach serves the
interests of all parties and of the courts. . . .” (Id. at p. 343.) “[A] defendant may move to
[dismiss] coupled with any other action without being deemed to have submitted to the
court’s jurisdiction. However, the motion to [dismiss] remains essential.” (Id. at p. 345.)
Our review of the record has failed to show any merit to plaintiffs’ claim that
MUM waived its right to challenge the jurisdiction of the state superior court in the
present action. Section 418.10 explicitly allows a defendant to move to dismiss an action
and simultaneously file a motion that would otherwise constitute a general appearance,
without conceding jurisdiction. The Legislature intended that section 418.10 be read
broadly to protect a defendant who moves to dismiss by providing that “‘no act’” by that
party shall constitute a general appearance. (Roy v. Superior Court, supra, 127
14 Cal.App.4th at p. 345.) A party may move to dismiss, coupled with any other action,
without submitting to the court’s jurisdiction. (Ibid.)
C. California Does Not Have Personal Jurisdiction Over MUM
1. Levi’s Admission
From his home in California, Levi visited defendant’s Web site where he read of
MUM’s teaching of TM. Following this contact, MUM promptly began recruiting Levi
with telephone calls and electronic and written mail; all of the contacts were from Iowa to
California and were done so to encourage Levi to enroll for the 2003 fall semester.
MUM assured Levi that the admission process could be expedited and completed before
classes began in the fall. On or about August 6, 2003, MUM contacted Levi by telephone
advising him that he had been accepted as a full-time undergraduate student; on August
12, 2003, MUM, by way of a written letter, formally notified Levi that he had been
admitted.
Plaintiffs received an unsolicited letter from Brad Mylett, director of admissions,
which accompanied a brochure entitled: Maharishi University of Management
Comments from Parents. Levi’s father spoke to MUM about Levi’s admission
application and possible financial assistance. MUM submitted evidence that it did not
enter into a written or oral contract with plaintiffs. Levi’s father declared that a contract
was entered into on or about August 7, 2003.
15 2. MUM’s Representatives Travel to California
Harry Bright was MUM’s director of admissions from 1989 to 1994. He
personally made two recruiting trips to California—one trip was in 1988 and one in 1992.
He met with prospective students at his hotel, at a TM center, or sometimes in the
prospective student’s home. On each trip he probably met between 10 and 20
prospective students. Over the years, others from the admissions office made sporadic
trips to California. Mylett was the director of admissions from 1994 to 2003. Over this
time span he traveled to California three or four times to attend college fairs sponsored
by the National Association of College Admissions Counselors. The last trip he made
was in the spring of 2003. After 2003, MUM wound down the practice of attending
college fairs.
In 1999, Noah Schechtman, and other students, went to Northern California to
demonstrate “yogic flying.” The students performed 25 demonstrations for
approximately 900 people, 800 of whom were high school students; materials on the
university may have been handed out. The purpose for the demonstrations was to help
promote TM.
3. MUM Doing Business in California Through Its Web site
MUM operates a Web site for posting information, applications for admittance,
ordering educational material, and making donations. A person can make a donation
online by credit card. Between January 1999 and March 2004 MUM received more than
$2 million in donations from California residents. MUM also advertises the school
16 through a Google search engine. It engaged in other Google AdWords for other sites in
2007, after the alleged events. MUM’s Web site allows individuals to print admission
application forms or apply for admission online.
MUM does not own any property in California. It is not registered to do business
in California, has no agent for service of process in California, does not have a campus in
California, has no employees or offices in California, does not have any bank accounts in
California and does not pay any taxes in California. However, MUM has more
undergraduate students from California than from any state except Iowa.
4. TM Centers in California to Recruit Students
Records show that Bevan Morris is the president of MUM and an officer or
president of MVED. MVED is a Massachusetts corporation which maintains its principal
place of business in Iowa and is alleged to have connections to TM centers in California.
TM centers are separately incorporated and were created to offer educational programs
based on the knowledge of Maharishi Mahesh Yogi. TM centers are operated by MVED.
MVED does not have a parent-subsidiary relationship with MUM. Individuals who
operate the TM centers and universities for the Maharishi refer to each other as
“Members of The Movement.” “The Movement” is the promotion of the Maharishi
teachings via TM. Numerous centers are in the United States, including California, and
several other countries.
TM centers provide oral, printed, and multi-media material relative to MUM upon
request of interested persons or for alumni in the area. Once in a while a TM center will
17 refer a student to MUM; one such referral of a California resident occurred in 1999. TM
centers are not owned by MUM, do not make any payments to MUM, and are not
controlled by MUM. Individuals who take California courses at TM centers forward all
payments to MVED.
5. MUM Sells and Ships Products Into California
MUM operates Maharishi University of Management Press (MUMPress) as an
unincorporated business division with profits flowing directly to MUM. For the past
seven years, MUM has relied on e-mail and Web sites to distribute books and CD’s for
sale. Any customer can order directly from the MUMPress Web site. Gross sales from
MUMPress are around $150,000 a year. About 9 percent of those sales are shipped to
California.
6. MUM’s Distance Educational Classes in California
MUM offers distance education classes. The two-credit courses are jointly offered
by MUM and authorized TM centers throughout the United States. In California, the TM
program is available only as a noncredit program and MUM does not participate in the
offering.
TM centers provide face-to-face teaching and MUM provides videotape lectures.
Classes such as “ED 101” and “ED 501” were not taught in California until 2005. Legal
counsel asked MUM to cease distance education in California in early 2006.
18 IV. ANALYSIS
A. General Jurisdiction
“A nonresident defendant may be subject to the general jurisdiction of the forum
if his or her contacts in the forum state are ‘substantial . . . continuous and systematic.’”
(Vons, supra, 14 Cal.4th at p. 445.) The “defendant’s contacts with the forum [must be]
so wide-ranging that they take the place of physical presence in the forum as a basis for
jurisdiction.” (Id. at p. 446.) “[C]onduct of single or isolated items of activities” in a
state are not sufficient to subject a party to suit on causes of action unconnected from the
forum activities. (International Shoe Co. v. State of Washington, etc. (1945) 326 U.S.
310, 317.) “The standard for establishing general jurisdiction is ‘fairly high,’ [citation],
and requires that the defendant’s contacts be of the sort that approximate physical
presence. [Citation.] Factors to be taken into consideration are whether the defendant
makes sales, solicits or engages in business in the state, serves the state’s markets,
designates an agent for service of process, holds a license, or is incorporated there.”
(Bancroft & Masters, Inc. v. Augusta Nat. Inc. (9th Cir. 2000) 223 F.3d 1082, 1086.)
“‘[I]t is not necessary that the specific cause of action alleged be connected with the
defendant’s business relationship to the forum.’ [Citations.]” (Vons, supra, at pp. 445-
446.)
Plaintiffs submit that general jurisdiction is present based on its following
contacts: (1) travel to California to recruit students; (2) the use of TM centers in
California to recruit students; (3) doing business in California through its Web sites; (4)
19 its sales and shipment of materials on TM to California; and (5) its receipt of donations
from California residents. We disagree. The record does not support a finding that
MUM’s contacts with California were substantial, continuous, and systematic. The
following cases provide guidance.
In Hardnett v. Duquesne University (D.Md. 1995) 897 F.Supp. 920, the plaintiff, a
Maryland resident and student at the university, was injured at a rock concert on the
defendant’s premises. The defendant university is located in Pennsylvania. The plaintiff
brought suit against the defendant in Maryland. (Ibid.) Prior to the incident, the plaintiff
had requested from the university an application for admission. The defendant’s sole
contacts with the State of Maryland were the sending of the application, as well as
literature about the university. After receiving the plaintiff’s application, the defendant
sent an acceptance letter to the plaintiff and extended a partial scholarship. (Id. at p.
922.) As stated by the court: “No claim for general jurisdiction can be constructed on
this basis, nor indeed could it be constructed even if it were true . . . that a recruiter had
visited a college fair in this State, that a toll free number was available for further
inquiries or that video presentations were mailed into the State. Such contacts, quite
simply, are not sufficiently ‘continuous and systematic,’ to make [the defendant]
susceptible to every sort of claim that might be filed in Maryland, including those
unrelated to the specific transaction in this case.” (Id. at p. 923.)
In Gehling v. St. George’s School of Medicine, Ltd. (3rd Cir. 1985) 773 F.2d 539,
a Pennsylvania resident brought a wrongful death action in Pennsylvania against a
20 university located in the West Indies. (Id. at p. 540.) The plaintiff alleged that a media
swing through Pennsylvania by two representatives of the school, advertisements through
national newspapers, 6 percent of the defendant’s students matriculating from
Pennsylvania, and several hundred thousand dollars of tuition payments by Pennsylvania
students to the defendant were sufficient for purposes of establishing general jurisdiction.
(Id. at pp. 541-542.) In addition, the defendant had a memorandum of understanding
with a Pennsylvania college wherein students from that college could be admitted to the
medical school even though they lacked sufficient background in the sciences. (Id. at p.
542.) In concluding that Pennsylvania did not have general jurisdiction, the court noted:
“[T]he income [the defendant] derive[d] from Pennsylvania is not a result of in-state
activities; rather it is the result of the educational services provided by St. George’s in
Grenada. . . . Moreover [the defendant’s] 1980 media swing through Pennsylvania does
not demonstrate continuous and substantial activity in Pennsylvania; there is no evidence
suggesting that students were solicited during the tour or that the tour was part of a
pattern of such visits.” (Id. at p. 543.)
In Bancroft & Masters, Inc. v. Augusta Nat. Inc., supra, 223 F.3d 1082, the
plaintiff, a computer services company, owned the Internet domain name “masters.org.”
It brought an action for declaratory relief in California against Augusta National Golf
Club, which held the “Masters” trademark. (Id. at p. 1084.) While finding that the
defendant was subject to specific jurisdiction, the court held that California lacked
general jurisdiction over the defendant. In addressing the issue, the court indicated:
21 “[The defendant’s] contacts do not qualify as either substantial or continuous and
systematic. [The defendant] is not registered or licensed to do business in California. It
pays no taxes in California, maintains no bank accounts in California, and targets no
print, television, or radio advertising toward California. [The defendant’s] masters.org
website is ‘passive,’ i.e., consumers cannot use it to make purchases. Furthermore, [the
defendant’s] occasional, unsolicited sales of tournament tickets and merchandise to
California residents are insufficient to create general jurisdiction.” (Id. at p. 1086.)
[E]ngaging in commerce with residents of the forum state is not in and of itself the kind
of activity that approximates physical presence within the state’s borders.” (Ibid.)
Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa. 1997) 952 F.Supp. 1119
involved a dispute over the use of various domain names. While the case dealt with
specific jurisdiction, as opposed to general jurisdiction, its discussion as to the
interrelationship between the Internet and personal jurisdiction is helpful. “‘[A]s
technological progress has increased the flow of commerce between States, the need for
jurisdiction has undergone a similar increase.’ [Citation.]” (Id. at p. 1123.)
“[T]he likelihood that personal jurisdiction can be constitutionally exercised is
directly proportionate to the nature and quality of commercial activity that an entity
conducts over the Internet. . . . At one end of the spectrum are situations where a
defendant clearly does business over the Internet. If the defendant enters into contracts
with residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is proper.
22 [Citation.] At the opposite end are situations where a defendant has simply posted
information on an Internet Web site which is accessible to users in foreign jurisdictions.
A passive Web site that does little more than make information available to those who are
interested in it is not grounds for the exercise of personal jurisdiction. [Citation.] The
middle ground is occupied by interactive Web sites where a user can exchange
information with the host computer. In these cases, the exercise of jurisdiction is
determined by examining the level of interactivity and commercial nature of the
exchange of information that occurs on the Web site. [Citation.]” (Zippo Mfg. Co. v.
Zippo Dot Com, Inc., supra, 952 F.Supp. at p. 1124.)
Where a defendant clearly does business over the Internet involving knowing and
repeated transmissions, courts will find general jurisdiction. In Gator.com Corp. v. L.L.
Bean, Inc. (9th Cir. 2003) 341 F.3d 1072, the court found general jurisdiction as a result
of the defendant’s Web site activity. (Id. at p. 1082.) The defendant was based in Maine;
the plaintiff was based in California. (Id. at pp. 1074-1075.) The defendant sold over $1
billion in products annually worldwide; $200 million, or 16 percent, through its Web site.
(Id. at p. 1074.) Through the mail, telephone, and Internet, the defendant sold $2 million
worth of products in California. (Ibid.)
While the defendant was not authorized to do business in California, had no agent
for service of process in California, and did not pay taxes in California, the court looked
to the “economic reality” of the defendant engaging in substantial solicitation in
California, including national print and broadcast, and the maintenance of numerous “on-
23 line” accounts for California residents, to support the conclusion that California had
general jurisdiction. (Gator.com Corp. v. L.L. Bean, Inc., supra, 341 F.3d at pp. 1074,
1077.)
Here, as the Maryland court found in Hardnett, sending literature, acceptance
letters, and recruiters to the forum state is not substantial and continuous. Nor was it held
to be substantial and continuous to advertise through national newspapers or have media
swings.
The fact MUM has a somewhat interactive Web site is also insufficient when
viewed with the other evidence. Determined by the sliding scale presented in Zippo,
MUM’s Web site presence would be considered a middle ground Web site at most when
examining its level of interactivity and commercial nature of information exchanged.
MUM’s Web site, including MUMPress, allows any person who visits the Web site to
purchase MUM merchandise, apply by application to the school, and derives, in total, 9
percent of its annual sales from California ($13,500 per year from 2006 to 2011). MUM
does not participate in extensive marketing in California, does not maintain a “highly
interactive” Web site, and the Web site does not store passwords nor users’ personal
information as it did in Gator.com Corp., which was a close case to determine. In
contrast to Gator.com Corp., MUM has not mailed a substantial number of
advertisements to California residents nor have they specifically targeted California
residents; in addition, MUM has not participated substantially in California’s market.
24 MUM’s Web site does allow purchases via credit card over the Internet, but sales are
minimal.
MUM’s business is located in Iowa. It maintains no offices, employees, or agents
in California. MUM’s advertisements consist of its Web site, pamphlets and brochures,
mail, and telephone calls, most of which are solicited; very small amounts are unsolicited,
as is the case in Bancroft & Masters, Inc. MUM also received approximately $2 million
in donations from 1999 to 2004, but plaintiffs fail to provide evidence of active
solicitation for these donations. Although Bancroft & Masters, Inc. had a completely
passive Web site, the court held its unsolicited sales of tournament tickets and
merchandise to California residents was insufficient to create general jurisdiction. In the
present case, MUM generally sent pamphlets and brochures to California upon requests
or for alumni in the area. It was not a “blanket” advertisement to California residents.
Furthermore, MUM is not authorized to do business in California, has no agent for
service of process in California, and is not required to pay taxes in California. Although
plaintiffs claim the TM centers represent a physical presence of MUM in California, they
provide no evidence of the claim. The TM centers are operated by MVED, a separate
and nonprofit corporation in Massachusetts. There is no parent-subsidiary relationship
between the TM centers and MUM. MUM receives no funds from the TM corporation.
In 2005, MUM began to offer distance learning lectures on videotape at TM centers.
Plaintiffs provide no other connection to the TM centers except requests for brochures by
interested prospects and sporadic referrals.
25 Under the sliding scale analysis, MUM’s contacts with California are insufficient
to confer general jurisdiction. MUM’s Web site is not highly interactive nor extensive.
The $13,500, or 9 percent, of annual revenue and minimal unsolicited advertising in
California does not qualify as substantial, systematic, and continuous commercial
activity.
We also find it unreasonable to compel MUM to defend the case in California.
MUM has not purposefully and substantially interjected itself into the California market.
The minimal sales of school merchandise to anyone who has Internet is not a compelling
case; engaging in commerce with residents of the forum state is not in and of itself the
kind of activity that approximates a physical presence. Haling MUM into California for
small advertising, accepting residents to the university, and selling small amounts of
merchandise over the Internet would open the doors for MUM to be haled into any court
in the nation.
The traditional notions of fair play and substantial justice would not be satisfied
here. Colleges and universities typically have limited contacts with practically every
state in the nation. (See, e.g., Khalil v. Chatham College (S.D.Tex. 2005) 391 F.Supp.2d
588, 593-594; Rodi v. Southern New England School of Law (D.N.J 2003) 255 F.Supp.
2d 346, 349-351.) Universities draw their students from all across the country; plaintiffs’
theory would subject them to suit on nonforum related claims in every state where a
member of the student body resides. Furthermore, all of the witnesses, evidence, and
parties to the lawsuit are located in Iowa except for plaintiffs. Plaintiffs brought this
26 action in California because at the time the lawsuit was brought, Iowa did not have a
wrongful death cause of action available and the statute of limitations was running to its
end. Although there is no alternative forum, we affirm the trial court’s finding that
California lacks general jurisdiction over MUM.
B. Specific Jurisdiction
Plaintiffs allege the trial court erred when it found MUM was not subject to
specific jurisdiction in California. Plaintiffs contend MUM purposefully availed itself of
forum benefits and that the controversy is related to or arises out of its contacts with
California. We disagree.
“‘A court may exercise specific jurisdiction over a nonresident defendant only if:
(1) “the defendant has purposefully availed himself or herself of forum benefits”
[citation]; (2) “the ‘controversy is related to or “arises out of” [the] defendant’s contacts
with the forum’” [citations]; and (3) “‘the assertion of personal jurisdiction would
comport with “fair play and substantial justice”’” [citations].’” (Snowney, supra, 35
Cal.4th at p. 1062.)
In Snowney, a California resident filed an action against a group of Nevada hotels
for failing to provide notice of an energy surcharge imposed on hotel guests. These
hotels conduct no business and have no bank accounts or employees in California; they
do advertise heavily in California and obtain a significant percentage of their business
from California residents. (Snowney, supra, 35 Cal.4th at p. 1059.) The advertisements
include billboards located in California, print ads in California newspapers, and ads aired
27 on California radio and television. These hotels also maintain an Internet Web site and a
toll-free telephone number where visitors or callers may obtain room quotes and make
reservations. The court held these activities were sufficient for personal jurisdiction.
(Ibid.)
The defendants were incorporated in either Nevada or Delaware and maintained
their principal place of business in Nevada. The defendants acknowledged they were
licensed to do business in California with a wholly owned subsidiary operating in
California. (Snowney, supra, 35 Cal.4th at p. 1060.) The court found that by soliciting
and receiving patronage of California residents through their advertising activities, the
defendants have purposefully directed their activities at California residents, have
purposefully derived a benefit from their contacts with California, and have established a
substantial connection with this state. (Id. at pp. 1060-1061.) Second, the court found
the defendants’ California contacts were substantially connected to the causes of action
that challenge an alleged mandatory surcharge imposed on a hotel guest. Finally, the
exercise of jurisdiction over the defendants would be fair and reasonable. (Id. at p.
1061.)
“‘“The purposeful availment inquiry . . . focuses on the defendant’s intentionality.
[Citation.] This prong is only satisfied when the defendant purposefully and voluntarily
directs [its] activities toward the forum so that [it] should expect, by virtue of the benefit
[it] receives, to be subject to the court’s jurisdiction based on” [its] contacts with the
forum.’ [Citations.]” (Snowney, supra, 35 Cal.4th at pp. 1062-1063.) In other words, it
28 creates a substantial connection with the forum, or engages in significant activities within
the forum. (Id. at p. 1063.)
In the present case, MUM’s contacts are insufficient to establish purposeful
availment. MUM is not incorporated in California, is not licensed to do business in
California, does not conduct substantial advertisement or business in California, and has
not established a substantial connection with California. We begin by examining MUM’s
Internet Web site. As mentioned, MUM’s Web site falls under the middle category of the
Zippo sliding scale of interactive Web sites. “‘Some courts have held that sufficient
minimum contacts are established, and the defendant is “doing business” over the
Internet, where the defendant’s website is capable of accepting and does accept purchase
orders from residents of the forum state.’ [Citation.]” (Snowney, supra, 35 Cal.4th at p.
1064.) “Other courts have suggested that ‘“something more”’ is necessary, such as
‘“deliberate action” within the forum state in the form of transactions between the
defendant and residents of the forum or conduct of the defendant purposefully directed at
residents of the forum state.’ [Citations.]” (Ibid.) We follow the latter.
“‘[T]here must be evidence that the defendant “purposefully availed” itself of
conducting activity in the forum state, by directly targeting its web site to the state,
knowingly interacting with residents of the forum state via its web site, or through
sufficient other related contacts.’” (Snowney, supra, 35 Cal.4th at p. 1064, quoting Toys
“R” Us, Inc. v. Step Two, S.A. (3d Cir. 2003) 318 F.3d 446, 454.) The case at hand does
not rise to the highly interactive Web site and advertisement in Snowney. MUM does not
29 specifically target California residents nor does the Internet activity reflect a substantial
business transaction with the residents of California. MUM conducts minimal business
via the Internet with California residents, not enough to subject them to personal
jurisdiction. MUM does not obtain a significant percentage of their business from
California residents because of their advertising or recruiting trips. Indiscriminate
advertising and small amounts of sales are not sufficient to show purposeful and
voluntary availment to the forum state.
“We now turn to the second prong of the test for specific jurisdiction . . . , and
determine whether the controversy is related to or arises out of defendants’ contacts with
California.” (Snowney, supra, 35 Cal.4th at p. 1067.) We find it does not.
The California Supreme Court adopted a “substantial connection” test and held the
relatedness requirement is satisfied if “‘there is a substantial nexus or connection between
the defendant’s forum activities and the plaintiff’s claim.’” (Snowney, supra, 35 Cal.4th
at p. 1068.) “‘[F]or the purpose of establishing jurisdiction the intensity of forum
contacts and the connection of the claim to those contacts are inversely related.’” (Ibid.)
“‘[T]he more wide ranging the defendant’s forum contacts, the more readily is shown a
connection between the forum contacts and the claim.’ [Citation.] . . . ‘[a] claim need
not arise directly from the defendant’s forum contacts in order to be sufficiently related to
the contact to warrant the exercise of specific jurisdiction.’” (Ibid.) “‘“‘[O]nly when the
operative facts of the controversy are not related to the defendant’s contact with the state
can it be said that the cause of action does not arise from that [contact].’”’ [Citations.]”
30 (Ibid.) In Snowney, “[b]y purposefully and successfully soliciting the business of
California residents, defendants could reasonably anticipate being subject to litigation in
California in the event their solicitations caused an injury to a California resident.” (Id. at
p. 1069.)
The present case is directly analogous to Roman v. Liberty University, Inc. (2008)
162 Cal.App.4th 670 [Fourth Dist., Div. Two] (Roman). In Roman, the plaintiff, through
his guardian ad litem, filed an action for personal injury damages in the superior court of
the State of California. (Id. at p. 674.) The complaint alleged the defendant’s recruiting
coordinator came from Virginia to California to recruit the plaintiff to play football and
offered him a football scholarship; the plaintiff accepted. The plaintiff executed an
athletic scholarship agreement in California. (Ibid.)
The plaintiff, while in Virginia, had a roommate who also played football. The
plaintiff and roommate had a history of leaving campus to drink alcohol after curfew.
(Roman, supra, 162 Cal.App.4th at p. 674.) The plaintiff was disciplined with revocation
of his scholarship, but the defendant did not enforce it and the plaintiff continued to play
football. The plaintiff requested a new roommate because of these problems, but the
defendant never addressed the request. (Ibid.)
The plaintiff and his roommate went out drinking again and the roommate
physically assaulted the plaintiff. The plaintiff started to walk back to campus and fell
from a train trestle; he sustained catastrophic brain injuries. (Roman, supra, 162
Cal.App.4th at p. 674.) The plaintiff claimed that the defendant breached a legal duty
31 owed to him because it failed to: (1) separate the plaintiff and his roommate when
requested; (2) remove the roommate from campus; (3) provide a safe and supportive
environment; and (4) confront the roommate regarding his various infractions. (Ibid.)
Roman concluded that the trial court did not err in granting the defendant’s motion to
quash for lack of personal jurisdiction. (Id. at p. 681.)
The court examined whether defendant purposely availed itself of the benefits of
doing business in California such that it could expect to be subject to the jurisdiction of
California courts. (Roman, supra, 162 Cal.App.4th at p. 681.) The plaintiff argued that
not only did the defendant recruit the plaintiff in California and offer him a scholarship,
the agreement was executed in California; in addition, the defendant recruited his
roommate from California. Furthermore, the defendant routinely recruited student
athletes in California; seven male students from California play sports at the defendant
university. Finally, the defendant’s Web site advertises an online degree program that
allows students from any state to take courses. (Id. at p. 680.)
The court found the plaintiff provided no support that the roommate was recruited
in California. Moreover, the defendant’s seven California students on its team roster
provide no basis for specific jurisdiction over the defendant in California because no
showing was made that those students were recruited in California. (Roman, supra, 162
Cal.App.4th at p. 680.) The plaintiff provided no evidence that the defendant had
enrolled any California residents in its online degree program. Thus, the only contact
established was that the defendant’s recruiting coordinator visited the plaintiff in
32 California and mailed plaintiff scholarship agreements, which were executed in
California. This conduct does not establish “purposeful availment.” (Ibid.)
Similarly here, plaintiffs claim sporadic recruitment by MUM, brochures,
advertisements on Web sites, and occasional recruiting trips satisfy purposeful availment.
We disagree. In fact, the defendant in Roman physically and specifically went to
California to recruit the plaintiff, while in the present case, MUM merely sent a letter,
brochure, and made a telephone call to California, with no physical presence in California
except for the Northern California college fairs. In addition, the application agreement
was executed by Levi in California, as in Roman. Furthermore, plaintiffs fail to provide
substantial evidence that TM centers recruited students who enrolled at MUM. MUM
does offer distance learning classes, as in Roman, but plaintiffs do not point to any
California residents participating before 2005 or who have enrolled in the school
thereafter. Therefore, as held in the case cited above, without much more, this conduct
does not establish purposeful availment.
Examining the second prong of the test for specific jurisdiction, the relatedness
requirement, the Roman court found the controversy was unrelated to and did not arise
from the defendant’s contacts with California. The plaintiff’s claims are for personal
injuries based on alleged activities that took place entirely within Virginia. (Roman,
supra, 162 Cal.App.4th at p. 680.)
Roman relied on Snowney to support a finding of jurisdiction. However, the court
found it distinguishable on its facts. Snowney was a class action brought by California
33 residents against a group of Nevada hotels alleging fraudulent business practices, breach
of contract, unjust enrichment, and violations of Business and Professions Code, based on
the hotels failing to provide notice of an energy surcharge imposed on guests. (Roman,
supra, 162 Cal.App.4th at pp. 680-681.) Although the hotels did not conduct business in
California, they advertised heavily in California, received a significant portion of their
business from California residents, and touted their close proximity to California. (Id. at
681.) The Snowney court held both that (1) the conduct of the hotels purposefully and
voluntarily directed their activities toward California in such a way they should expect to
be subject to jurisdiction in California, and (2) the injury suffered by the plaintiff relates
directly to the content of the defendant’s advertising in California. (Ibid.)
In Roman, in contrast, the plaintiff showed only that the defendant’s recruiter
made a single visit to California and the scholarship agreements were executed in
California. The nexus between the defendant’s activities in California and the injury to
the plaintiff was so attenuated as to be virtually nonexistent. (Roman, supra, 162
Cal.App.4th at p. 681.)
The present case arises out of Levi’s death in Iowa. Prior to his death, MUM’s
faculty and students visited California three to four times for recruiting or college fairs
over a span of decades. In addition, MUM advertised itself through its Web site,
brochures, and word of mouth throughout the country. MUM did not specifically direct
any solicitation toward Levi until after Levi showed interest in the university. No
34 representatives of MUM directly visited Levi in California; the director of admissions of
MUM spoke with Levi on the telephone and then sent a letter of acceptance to California.
Furthermore, plaintiffs provided no evidence of a contract. Regardless, a contract
formed by MUM and plaintiffs in California does not create a nexus between MUM’s
contacts with California and Levi’s death in Iowa. Plaintiffs did not show California
residents were solicited by TM centers in California and attended MUM thereafter.
MUM offered distance education classes at TM centers all around the country from 2005
to 2006. MUM allowed current students at the Iowa campus to earn credits in California;
plaintiffs provided no other evidence of solicitation or advertisement directed to
California or any other state. In any event, the TM centers had no connection with Levi’s
death. We find MUM did not purposefully and voluntarily avail itself to California in
such a way that it should be expected to defend this suit in this forum.
We hold, as we did in the general jurisdiction analysis, that it would be unfair or
unreasonable to exercise jurisdiction over MUM in this state. We conclude the trial court
did not err in granting MUM’s motion to dismiss for lack of personal jurisdiction.
V. DISPOSITION
The judgment is affirmed. Each party shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
35 KING Acting P. J.
We concur:
MILLER J.
CODRINGTON J.