Thurston v. Fairfield Collectibles of Georgia, LLC

Filed 8/26/20
See Dissenting Opinion
CERTIFIED FOR PARTIAL PUBLICATION1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CHERYL THURSTON et al.,

Plaintiffs and Appellants, E072909

v. (Super.Ct.No. CIVDS1831538)

FAIRFIELD COLLECTIBLES OF OPINION
GEORGIA, LLC,

Defendant and Respondent.

APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs,

Judge. Reversed with directions.

Pacific Trial Attorneys, Scott J. Ferrell and Victoria C. Knowles for Plaintiffs and

Appellants.

Dunbar & Associates, Kevin T. Dunbar, and Matt D. Derossi for Defendant and

Respondent.

1 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts III and IV.

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 Plaintiffs Cheryl Thurston and Luis Licea (collectively Thurston) are Californians.

Defendant Fairfield Collectibles of Georgia, LLC (Fairfield) is a Georgia limited liability

company. It vends its wares through catalogs and through its website. In this action,

Thurston alleges that Fairfield’s website is not fully accessible by the blind and the

visually impaired, in violation of the Unruh Civil Rights Act. (Civ. Code, § 51 et seq.)

The trial court granted Fairfield’s motion to quash service of summons. It ruled

that California could not obtain personal jurisdiction over Fairfield, because Fairfield did

not have sufficient minimum contacts with California.

We will reverse. The evidence showed that Fairfield makes some eight to ten

percent of its sales to Californians. Hence, its website is the equivalent of a physical

store in California. Moreover, this case arises out of the operation of that website. The

trial court therefore can properly exercise personal jurisdiction over Fairfield.

I

FACTUAL AND PROCEDURAL BACKGROUND

The following facts were shown by the evidence offered in support of and in

opposition to the motion to quash.

Fairfield is the largest retail seller of diecast models via catalogs and the Internet

in America. It is a Georgia limited liability company. Its principal place of business is in

Georgia. It has never had an office in California. It does not employ any resident of

California.

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 Fairfield’s only contact with California is that its sales through its catalogs and its

website include some sales to Californians. Fairfield sells to wholesalers as well as direct

to consumers. It makes about eight percent of its total sales to Californians. Out of its

sales to consumers only, it makes a little over ten percent to Californians. Fairfield’s

total sales to California addresses are about $320,000 to $375,000 a year.

II

PROCEDURAL BACKGROUND

Thurston filed this action in 2018. She asserted a single cause of action, for

violation of the Unruh Civil Rights Act.

She alleged that she was blind; that she needed a “screen reader” to use the

Internet; and that Fairfield’s website had “access barriers,” which interfered with the use

of a screen reader and thus prevented blind people from having “full and equal access” to

the website. Among other things, the website did not comply with the most recent “Web

Content Accessibility Guidelines” (Guidelines) promulgated by the World Wide Web

Consortium (W3C).

Thurston also alleged that she is acting as a “tester,” meaning that she visits

websites to determine whether they comply with antidiscrimination laws. Nevertheless,

she “genuinely want[s] to avail [herself] of [Fairfield]’s goods and services as offered on

[Fairfield]’s website.” She had made “several attempts to use and navigate [Fairfield’s

w]ebsite,” but had been unable to do so due to its “accessibility barriers.” These barriers

had “deterred [her] from purchasing [Fairfield’s] products . . . .”

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 Fairfield promptly filed a motion to quash, based on lack of personal jurisdiction.

After hearing argument, the trial court granted the motion. It commented, in part, that

Fairfield “did not direct its website toward California.”

III

APPEALABILITY

Preliminarily, Fairfield contends that this appeal is taken from a nonappealable

order.

“[A]n order granting a motion to quash service of summons” is appealable. (Code

Civ. Proc., § 904.1, subd. (a)(3).)

The particular order appealed from here is an unsigned minute order. An unsigned

minute order granting a motion to quash is appealable because it is final; it contemplates

no further action. (Gould, Inc. v. Health Sciences, Inc. (1976) 54 Cal.App.3d 687, 690,

fn. 1.) This situation “may be thus distinguished from those where the minute order

directs the entry of nonsuit or dismissal and appeal may only properly be taken from the

resultant judgment, rather than the minute order.” (Ibid.; see also Walton v. Mueller

(2009) 180 Cal.App.4th 161, 167 [unsigned minute order denying motion to enforce

settlement was appealable]; In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406,

1410 [unsigned minute order denying application to unseal records was appealable; “[a]n

unsigned minute order can form the basis of an appeal, unless it specifically recites that a

formal order is to be prepared”].)

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 Fairfield relies on Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894.

Alan involved an order denying class certification, not an order granting a motion to

quash. (Id. at p. 898.) And Alan merely stated, “The general rule is that a statement or

memorandum of decision is not appealable. [Citations.]” (Id. at p. 901.) In our case,

there was no statement of decision. Alan went on to hold that the minute order in that

case was appealable. (Id. at p. 902.)

In any event, after Fairfield filed its respondent’s brief, the trial court, on

Thurston’s motion, signed and entered a formal order granting the motion to quash.1

Thus, even assuming the minute order was not appealable, Thurston’s notice of appeal

was taken prematurely but validly from the formal order. (Cal. Rules of Court, rule

8.104(d)(2).)

IV

MOOTNESS

Fairfield also contends that this action is moot because, in September 2018, the

federal Department of Justice (Department) officially took the position that

noncompliance with the Guidelines does not necessarily establish noncompliance with

the Americans with Disabilities Act (ADA).

1 The order recited that it was effective as of April 18, 2019, the date of the
minute order, “nunc pro tunc.” We have no problem with that. But we do have a
problem with the fact that the trial court hand-dated it April 18, 2019, and worse, the
clerk back-dated the file stamp to April 18, 2019. This essentially falsifies the record.
Saying “nunc pro tunc” in the order was enough.

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 California’s Unruh Civil Rights Act provides, “A violation of the right of any

individual under the federal [ADA] shall also constitute a violation of this section.” (Civ.

Code, § 51, subd. (f).)

Thurston’s complaint alleges that Fairfield’s website fails to comply with the

Guidelines. Assuming the Department’s position is binding on this court — an issue that

Fairfield does not even bother to discuss — it only means that noncompliance with the

Guidelines does not necessarily establish noncompliance with the ADA; however it can

in particular cases.

Moreover, this is not Thurston’s only relevant allegation. She also alleges, more

generally, that the website has barriers to access by the visually impaired. These barriers

“include, but are not limited to” particular barriers that are listed in the complaint. She

alleges that persons who use a screen reader are “hindered from effectively browsing” the

website. Indeed, the website is “inaccessible” to the visually impaired. This goes beyond

a mere claim of noncompliance with the Guidelines.

In a jargon-heavy passage, Fairfield also seems to argue that its site is in

compliance with the Guidelines. Given the procedural posture of this appeal, there is no

evidence of this in the record. Fairfield cites a web page that supposedly proves this, but

it has not requested judicial notice of the page; indeed, the page does not appear to be

judicially noticeable.

We therefore conclude that Fairfield has not shown that the underlying action is

moot.

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 V

SPECIFIC JURISDICTION BASED ON INTERNET SALES

“A court of this state may exercise jurisdiction on any basis not inconsistent with

the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.)

“The Due Process Clause of the Fourteenth Amendment constrains a State’s

authority to bind a nonresident defendant to a judgment of its courts. [Citation.]

Although a nonresident’s physical presence within the territorial jurisdiction of the court

is not required, the nonresident generally must have ‘certain minimum contacts . . . such

that the maintenance of the suit does not offend “traditional notions of fair play and

substantial justice.”’ [Citation.]” (Walden v. Fiore (2014) 571 U.S. 277, 283.)

There are “two types of personal jurisdiction: ‘general’ (sometimes called ‘all-

purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.

[Citation.]” (Bristol-Myers Squibb Co. v. Superior Court (2017) ___ U.S. ___, ___ [137

S.Ct. 1773, 1779-1780].)

Thurston disclaims any reliance on general jurisdiction. Hence, we discuss only

specific jurisdiction.

“‘When determining whether specific jurisdiction exists, courts consider the

“‘relationship among the defendant, the forum, and the litigation.’” [Citation.] A court

may exercise specific jurisdiction over a nonresident defendant only if: (1) “the

defendant has purposefully availed himself or herself of forum benefits” [citation]; (2)

“the ‘controversy is related to or “arises out of” [the] defendant’s contacts with the

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forum’” [citation]; and (3) “‘the assertion of personal jurisdiction would comport with

“fair play and substantial justice”’” [citation]’ [Citation.]” (Snowney v. Harrah’s

Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062; accord, In re Boon Global Limited (9th

Cir. 2019) 923 F.3d 643, 651.)

“‘When a defendant moves to quash service of process’ for lack of specific

jurisdiction, ‘the plaintiff has the initial burden of demonstrating facts justifying the

exercise of jurisdiction.’ [Citation.] ‘If the plaintiff meets this initial burden, then the

defendant has the burden of demonstrating “that the exercise of jurisdiction would be

unreasonable.”’ [Citation.]” (Snowney v. Harrah’s Entertainment, Inc., supra, 35

Cal.4th at p. 1062.)

“When there is conflicting evidence, the trial court’s factual determinations are not

disturbed on appeal if supported by substantial evidence. [Citation.] When no conflict in

the evidence exists, however, the question of jurisdiction is purely one of law and the

reviewing court engages in an independent review of the record. [Citation.]” (Vons

Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.)

A. Purposeful Availment.

Due process requires purposeful availment because it “gives a degree of

predictability to the legal system that allows potential defendants to structure their

primary conduct with some minimum assurance as to where that conduct will and will

not render them liable to suit.” (World-Wide Volkswagen Corp. v. Woodson (1980) 444

U.S. 286, 297.) “When a corporation ‘purposefully avails itself of the privilege of

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conducting activities within the forum State,’ [citation], it has clear notice that it is

subject to suit there, and can act to alleviate the risk of burdensome litigation by

procuring insurance, passing the expected costs on to customers, or, if the risks are too

great, severing its connection with the State.” (Ibid.)

“To determine whether a Web site is sufficient to establish purposeful availment,

we first look to [a] sliding scale analysis . . . . [Citation.] ‘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.

[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.]” (Snowney v. Harrah’s

Entertainment, Inc., supra, 35 Cal.4th at p. 1063.)2

2 Snowney’s “sliding scale” approach must not be confused with a different
“sliding scale” approach set forth in Bristol-Myers Squibb Co. v. Superior Court (2016) 1
Cal.5th 783.

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 “‘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.] 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.] Other courts ‘have criticized . . . emphasis on

website interactivity’ [citation] and focus instead on ‘traditional due process principles’

[citation], asking whether the site expressly targets ‘residents of the forum state’

[citation]. According to these courts, ‘Website interactivity is important only insofar as it

reflects commercial activity, and then only insofar as that commercial activity

demonstrates purposeful targeting of residents of the forum state or purposeful availment

of the benefits or privileges of the forum state.’ [Citations.]” (Snowney v. Harrah’s

Entertainment, Inc., supra, 35 Cal.4th at p. 1064.)

Bristol-Myers endorsed “a sliding scale approach to specific jurisdiction in which
. . . ‘the more wide ranging the defendant’s forum contacts, the more readily is shown a
connection between the forum contacts and the claim.’ [Citation.]” (Bristol-Myers,
supra, 1 Cal.5th at p. 806.) The United States Supreme Court reversed Bristol-Myers and
disapproved this “sliding scale” approach. (Bristol-Myers Squibb Co. v. Superior Court,
supra, 137 S.Ct. 1773, 1781-1782.)

The “sliding scale” in Snowney is specific to websites. It does not look to how
wide-ranging the defendant’s forum contacts are; it looks instead to how interactive and
commercial the website is. We conclude that it is still good law.

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 In Snowney itself, a California resident filed a putative class action against Nevada

hotel owners, alleging that they accepted reservations without disclosing an energy

surcharge. (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1059.)

The Supreme Court held that the trial court had specific jurisdiction. (Snowney v.

Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1062.) With regard to purposeful

availment, it explained: “By touting the proximity of their hotels to California and

providing driving directions from California to their hotels, defendants’ Web site

specifically targeted residents of California. [Citation.] Defendants also concede that

many of their patrons come from California and that some of these patrons undoubtedly

made reservations using their Web site. As such, defendants have purposefully derived a

benefit from their Internet activities in California [citation], and have established a

substantial connection with California through their Web site [citation]. In doing so,

defendants have ‘purposefully availed [themselves] of the privilege of conducting

business in’ California ‘via the Internet.’ [Citation.]” (Id. at pp. 1064-1065.)

Admittedly, the court went on to state: “In any event, even assuming that

defendants’ Web site, by itself, is not sufficient to establish purposeful availment, the site

in conjunction with defendants’ other contacts with California undoubtedly is.”

(Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1065.) It then relied

additionally on the defendants’ maintenance of a toll-free number and on their

“extensive[]” advertising, by direct mail, billboards, newspapers, radio, and television in

California. (Ibid.) But this was only an alternative holding. As such, it does not detract

11
from the court’s first holding that there was purposeful availment even without regard to

these additional factors. (See Southern Cal. Ch. of Associated Builders etc. Com. v.

California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3 [alternative holdings

are equally valid].)

Here, much as in Snowney, many of Fairfield’s customers are California residents.

And all of these — not just some — necessarily purchased through either Fairfield’s

website or its catalog. On the other hand, unlike in Snowney, there is no evidence that

Fairfield’s website “targeted” Californians (any more than residents of other states, or

indeed other countries).

The question, then, is whether this distinction makes a difference. As You Sow v.

Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859 indicates that it does not.

There, a nonprofit organization sued an Illinois paint manufacturer, alleging that the

manufacturer had made sales to California residents without providing warnings required

by Proposition 65. (Id. at pp. 1863-1864.) Over six years, the manufacturer had made 16

sales to California distributors. These sales were never more than one percent of its

annual sales. (Id. at p. 1864.)

The appellate court held that this was sufficient to show purposeful availment. (As

You Sow v. Crawford Laboratories, Inc., supra, 50 Cal.App.4th at p. 1869.) It explained:

“‘[A]n enterprise obtains the benefits and protection of our laws if as a matter of

commercial reality it has engaged in economic activity within this state . . . . [Citation.]’

[Citation.]” (Id. at p. 1870.) “Instead of focusing on the quantity of activity, we must

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look to see if the defendant purposefully availed itself of the benefits and protections of

California law to make it reasonably foreseeable to be ‘haled into the court in the forum

State’ to defend itself in an action relating to its products. [Citation.] When a

manufacturer makes a direct effort to serve the market for its product in the forum state,

the requisite level of foreseeability is met. [Citation.]” (Ibid.)

To summarize, then, under California case law, making a substantial number of

sales of goods or services to California residents via one’s own website constitutes

purposeful availment. The vast majority of federal cases are in accord. (E.g., Rovio

Entertainment, Ltd. v. Allstar Vending, Inc. (S.D.N.Y. 2015) 97 F.Supp.3d 536, 542;

Advanced Skin & Hair, Inc. v. Bancroft (C.D. Cal. 2012) 858 F.Supp.2d 1084, 1090;

Rainy Day Books, Inc. v. Rainy Day Books & Cafe, L.L.C. (D. Kan. 2002) 186 F.Supp.2d

1158, 1163-1165; American Eyewear, Inc. v. Peeper’s Sunglasses and Accessories, Inc.

(N.D. Tex. 2000) 106 F.Supp.2d 895, 900-901; Zippo Mfg. Co. v. Zippo Dot Com, Inc.

(W.D. Pa. 1997) 952 F.Supp. 1119, 1125-1127; see also Gorman v. Ameritrade Holding

Corp. (D.C. Cir. 2002) 293 F.3d 506, 512–513 [“continuous and systematic” website

sales to state residents supports general jurisdiction]; contra, Fidrych v. Marriott

International, Inc. (4th Cir. 2020) 952 F.3d 124, 141-143.)

Admittedly, the sales must be substantial; they are not enough if they are only

“random, isolated, or fortuitous . . . .” (See Keeton v. Hustler Magazine, Inc. (1984) 465

U.S. 770, 774.) But even assuming As You Sow was erroneous in predicating jurisdiction

on less than one percent of sales, here Fairfield made eight percent of its sales to residents

13
of California. These sales totaled some $320,000 to $375,000 a year. That is the

equivalent of having a brick-and-mortar store in California — a “virtual store.” (See

Stomp, Inc. v. NeatO, LLC (C.D. Cal. 1999) 61 F.Supp.2d 1074, 1078, fn. 7.)

Given that volume of transactions, Fairfield was on notice that it could be sued in

California. Certainly if a California resident were injured by a defective diecast model

purchased from Fairfield’s website, that resident could sue Fairfield in California. The

benefit of making substantial sales to California consumers comes at the cost of

potentially being sued in California. If Fairfield finds that too burdensome, it can simply

choose not to sell to Californians and to post a notice to that effect on its website.

In the words of Snowney, Fairfield “‘clearly does business over the Internet. [It]

enters into contracts with residents of a foreign jurisdiction that involve the knowing and

repeated transmission of computer files over the Internet . . . .’ [Citation]” (Snowney v.

Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1063.) Hence , “‘personal

jurisdiction is proper.’” (Ibid.)

Finally, even assuming that there must be some evidence that, in addition to

making substantial website sales to Californians, a defendant has “targeted” Californians,

there was such evidence here. Fairfield sells not only online, but also through catalogs.

It sends out approximately 1.4 million catalogs a year. Howard Fox, the President of

Fairfield, did not know how many of these were sent to California; he explained, “It’s

based on who signs up for the catalog.” Nevertheless, the only reasonable inference is

that Fairfield sent a substantial number of catalogs to residents of California. This shows

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that it made a deliberate decision to sell to California residents, not only through its

website, but also through its catalogs.

We therefore conclude that Fairfield has purposefully availed itself of the benefits

of the California market.

B. Nature of the Controversy.

We also conclude that the controversy arises out of Fairfield’s contacts with

California, under any standard. (See David L. v. Superior Court (2018) 29 Cal.App.5th

359, 374, fn. 8, and cases cited.) Those contacts consist of maintaining a virtual store on

the Internet that makes substantial sales to Californians. Thurston alleges that it

maintains that virtual store in an unlawfully discriminatory manner, so that she, a

Californian, is prevented from browsing and making purchases. Admittedly, unlike the

purchaser injured by a defective Fairfield product, whom we hypothesized in part V.A,

ante, Thurston never actually made a purchase from the website. But this is a distinction

without a difference. Just as Fairfield’s website is like a brick-and-mortar store, Thurston

is like a mobility-impaired person who cannot get up the steps to enter that store and

make a purchase. It is hard to imagine a closer nexus between a contact and a

controversy.

C. Reasonableness.

We turn to whether “an exercise of jurisdiction would be reasonable and fair,

consistent with notions of fair play and substantial justice. [Citations.]” (In re

Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 115.)

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 Because Thurston established minimum contacts (see parts V.A and V.B, ante), it

was Fairfield’s burden to show that the exercise of jurisdiction would be unreasonable.

(Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1062.) It made no

effort to do so. It introduced no evidence on this issue. We therefore conclude that the

exercise of jurisdiction by California in this case would not be unreasonable. As already

discussed in part V.A, ante, if Fairfield finds it too burdensome to be sued in California,

it can simply decline to sell to Californians.

In its brief, Fairfield did not argue that the exercise of jurisdiction would be

unreasonable. At oral argument, however, it complained that it would be ruinous for it to

have to comply with not just California law, but the law of all 50 states. We are not

holding, however, that California law (i.e., the Unruh Civil Rights Act) applies. The

issue of personal jurisdiction is distinct from the issue of choice of law. (E.g., Phillips

Petroleum Co. v. Shutts (1985) 472 U.S. 797, 806-823 [Kansas had personal jurisdiction

over plaintiff class members out of state but could not constitutionally apply its law].) As

the United States Supreme Court stated in Keeton v. Hustler Magazine, Inc. , supra, 465

U.S. 770, a choice of law question “presents itself in the course of litigation only after

jurisdiction over [the defendant] is established, and we do not think that such choice-of-

law concerns should complicate or distort the jurisdictional inquiry.” (Id. at p. 778.)

In sum, then, the trial court could and should have exercised personal jurisdiction

over Fairfield.

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 VI

DISPOSITION

The order appealed from is reversed. The trial court is directed to deny the motion

to quash. Thurston is awarded costs on appeal against Fairfield.

CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.

I concur:

CODRINGTON
J.

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[Thurston et al., E072909]

MENETREZ, J., Dissenting.

Fairfield Collectibles of Georgia, LLC (Fairfield) is a Georgia limited liability

company that sells diecast collectibles. Fairfield regularly makes sales to California

residents. It is possible that Fairfield also mails copies of its catalogue to some California

residents, upon request. Fairfield has no other contacts with California.

Fairfield operates a website, through which customers may purchase Fairfield’s

products. Fairfield’s website does not target California residents, and the record contains

neither allegations nor evidence that Fairfield’s other advertising targets California

residents.

Plaintiffs are California residents who are suing Fairfield in California for

violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) because Fairfield’s

website allegedly is not sufficiently accessible to the visually impaired. Plaintiffs have

never bought anything from Fairfield. Plaintiffs have never received or requested a copy

of Fairfield’s catalogue.

The trial court granted Fairfield’s motion to quash service of summons based on

lack of personal jurisdiction. I believe the trial court’s ruling was correct.

“Personal jurisdiction may be either general or specific.” (Vons Companies, Inc.

v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445 (Vons).) Plaintiffs do not contend that

Fairfield is subject to general jurisdiction in California, so only specific jurisdiction is at

issue.

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 A nonresident defendant is subject to specific jurisdiction only if “the ‘controversy

is related to or “arises out of” [the] defendant’s contacts with the forum,’” where those

contacts consist of “activities” that the defendant “has ‘purposefully directed’ . . . at

forum residents.” (Vons, supra, 14 Cal.4th at p. 446.) Plaintiffs’ lawsuit is not related to

and does not arise out of anything that Fairfield purposefully directed at California

residents. Plaintiffs do not allege that they have been injured by a diecast collectible they

purchased from Fairfield—plaintiffs have never purchased anything from Fairfield.

Plaintiffs also do not allege that they have been injured by Fairfield’s catalogue—

plaintiffs have never requested, been sent, or received Fairfield’s catalogue. Because

selling products to California residents and (possibly) mailing catalogues to California

residents are the only activities that Fairfield has ever purposefully directed at California

residents, it follows that plaintiffs’ suit is not related to and does not arise from Fairfield’s

contacts with California.

Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054 (Snowney) is

instructive. In Snowney, the nonresident defendants’ website “specifically targeted

residents of California” by “touting the proximity of [the defendants’] hotels to California

and providing driving directions from California to their hotels.” (Id. at p. 1064.) As a

result, “many of their patrons come from California” and “some of these patrons

undoubtedly made reservations using their Web site,” so the defendants had

“purposefully derived a benefit from their Internet activities in California.” (Id. at

pp. 1064-1065, italics added.) The instant case is completely different, because

2
Fairfield’s website does not target residents of California. The Fairfield website is no

more directed at California residents than at anyone else on Earth who speaks English

and has access to the Internet. Fairfield cannot, without more, be subjected to personal

jurisdiction in California for alleged shortcomings of its website, because Fairfield’s

website is not directed at California.

As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859 (As You

Sow) is distinguishable. In As You Sow, the defendant sold its products to California

distributors but allegedly failed to comply with the warning requirements of Proposition

65 with respect to those sales. (As You Sow, supra, at pp. 1863-1864.) The defendant

was accordingly subject to specific personal jurisdiction in California in a suit for those

alleged violations of Proposition 65—the violations were related to and arose out of the

defendant’s activities that were purposefully directed at California, namely, the

defendant’s sales of its products to California residents. (As You Sow, at pp. 1869-1872.)

Again, the facts of the instant case are completely different. Plaintiffs’ claims do not

concern any conduct by Fairfield that is directed at California—plaintiffs’ claims do not

concern Fairfield’s sales to California residents or Fairfield’s (possible) mailing of

catalogues to California residents, and that is the only conduct of Fairfield’s that is

directed at California.

Plaintiffs focus on the ratio of Fairfield’s California sales to Fairfield’s global

sales, and the majority opinion finds the issue significant as well. (Maj. opn. ante,

pp. 13-14.) I believe the issue is a red herring. On the one hand, if Fairfield sold only

3
one diecast collectible to a California resident and the resident was injured by that

product, then the resident could subject Fairfield to specific jurisdiction in California for

redress for that injury, assuming the reasonableness requirement was also met. The low

volume of sales would not undermine the showing of purposeful availment and

relatedness. On the other hand, even if a very large proportion of Fairfield’s sales (say 50

percent) were to California residents, that would not change the fact that Fairfield cannot

be subjected to specific jurisdiction in California for the website defects alleged in this

case. Similarly, a large proportion of sales in California would not mean that Fairfield

could be subjected to specific jurisdiction in California in a suit for wage and hour or

workplace safety violations at its headquarters in Georgia. Again, specific personal

jurisdiction exists only if “the ‘controversy is related to or “arises out of”’” the

defendant’s “activities” that are “‘purposefully directed’ . . . at forum residents.” (Vons,

supra, 14 Cal.4th at p. 446.) Plaintiffs’ claims about the flaws in Fairfield’s website are

not related to and do not arise out of Fairfield’s sales to California residents, no matter

how voluminous those sales are.

The majority opinion reasons that because “Fairfield’s website is like a brick-and-

mortar store,” plaintiffs are “like a mobility-impaired person who cannot get up the steps

to enter that store and make a purchase.” (Maj. opn. ante, at p. 15.) I am not persuaded,

because Fairfield’s website is not like a brick-and-mortar store in California.

If Fairfield operated a brick-and-mortar store in California, that would be conduct

purposefully directed at California residents. If Fairfield operated that California store in

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a manner that made it unlawfully inaccessible to disabled would-be customers, then

Fairfield would be subject to personal jurisdiction in California in a suit by the affected

individuals. But if Fairfield operates a brick-and-mortar store in Georgia and in no way

targets California, and a disabled California resident traveling through Georgia is unable

to enter the store because the store is operated in an unlawfully inaccessible manner, then

Fairfield would not be subject to personal jurisdiction in California in a suit by that

California resident. Moreover, it would make no difference if a significant percentage of

Fairfield’s sales at its Georgia store were to California residents traveling through

Georgia (again assuming that Fairfield did not target California residents).

The facts of this case are analogous—some California residents happened upon an

out-of-state website that does not target California, believed it to be unlawfully

inaccessible, and are trying to subject the website operator to suit in California. The law

of specific personal jurisdiction does not allow that—plaintiffs’ claims are not related to

and do not arise from any conduct by Fairfield that is purposefully directed at California

residents.

For all of the foregoing reasons, I would affirm the judgment of dismissal. I

therefore respectfully dissent.
MENETREZ
J.

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