Miranda v. Nissan Motor Company CA2/3

Filed 12/13/22 Miranda v. Nissan Motor Company CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION THREE

KARLA MIRANDA, B316592
Plaintiff and Appellant, Los Angeles County
v. Super. Ct. No.
19STCV02649
NISSAN MOTOR COMPANY,
LTD., et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los
Angeles County, Mark C. Kim, Judge. Affirmed.
Law Offices of Ugo O. Asobie and Ugo O. Asobie for
Plaintiff and Appellant.
SJL Law, Julian Senior; Bowman and Brooke, Mike H.
Madokoro and Robert A. Brundage for Defendant and
Respondent Nissan Motor Company, Ltd.
_______________________________________
 INTRODUCTION

Oscar Miranda (Miranda) worked as a truck driver at a
facility in Long Beach, California. On December 18, 2018, he was
assigned to transport a container that was not properly installed
on his truck. To rectify the problem, Miguel Rodriguez used a
forklift to align the container to the chassis of the truck but part
of the forklift broke off and struck Miranda or caused him to fall.
Miranda died from his injuries the following day. In addition to
suing Rodriguez and other defendants for negligence and
premises liability, plaintiff and appellant Karla Miranda
(plaintiff) sued defendant and respondent Nissan Motor Co., Ltd.
(Nissan) for product liability.1 Plaintiff alleged that Nissan
designed, manufactured, or assembled the forklift, or supplied
parts to the manufacturer, and the defective forklift was a
substantial factor in causing Miranda’s death.
The trial court granted Nissan’s motion to quash service of
summons for lack of personal jurisdiction. Plaintiff appeals,
arguing that Nissan is subject to specific jurisdiction in
California because it purposely availed itself of the benefits and
protections of the forum. We affirm.

BACKGROUND

In February 2020, plaintiff filed an unverified second
amended complaint in the Superior Court of the State of
California for the County of Los Angeles. She sued numerous
defendants including the owner of the facility where the
container was located, the owner of the container, the owner of

1 Plaintiff sued in her individual capacity, as Miranda’s successor in
interest, and as guardian of Miranda’s children.

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the defective truck chassis, and the owner and driver of the
forklift, for negligence and premises liability. She also sued Doe
defendants 90 through 100 for product liability. Relevant here,
plaintiff alleged Does 90 through 95 “designed, manufactured
and/or assembled the forklift and/or supplied parts to the
manufacturer.” She also alleged that a different set of
defendants, Does 96 through 100, sold the forklift “to the public
and ultimately the final owners of the forklift at the time of the
subject incident.” In January 2021, nearly a year after plaintiff
filed her operative pleading, she filed an amendment to the
complaint identifying Nissan as Doe defendant No. 93.2
In February 2021, Nissan appeared specially and moved to
quash service of summons for lack of personal jurisdiction. In
support of its motion, Nissan submitted the declarations of its
Deputy General Manager (Jacquelyn Trussell) and its attorney of
record (Victor Balladares). Nissan argued the court does not have
general or specific jurisdiction over Nissan. As for specific
jurisdiction, Nissan contended that plaintiff has not alleged it
purposely availed itself of California’s benefits, plaintiff does not
allege claims arising from Nissan’s contacts with California, and
finding personal jurisdiction over Nissan would not comport with
traditional notions of fair play and substantial justice. Nissan
emphasized that it is a Japanese corporation based in Japan,
does no business in California, and has no employees or presence
in California. In addition, Nissan does not conduct any sales,
service, or other business activities in California, nor has Nissan

2She named a different entity, Nissan Motor Corporation, as Doe
defendant No. 94. At plaintiff’s request, that entity was dismissed as a
defendant in August 2021.

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directed its efforts or those of its employees for any of these
purposes. Further, “the forklift which is the subject of this
lawsuit was manufactured in 1986, and [Nissan] did not export
the subject forklift to California or the United States.” Although a
different entity, Nissan North America, Inc. (NNA), is a
California corporation and a wholly owned subsidiary of Nissan,
NNA and Nissan are independent and separate legal entities,
NNA is not Nissan’s agent, and Nissan does not exercise any
control over the business decisions made by NNA relating to the
distribution and sale of Nissan and Infiniti vehicles in the United
States.
Plaintiff requested and received a continuance to conduct
jurisdictional discovery. After the continuance, plaintiff
submitted a supplemental opposition and additional evidence.
Much of it was held inadmissible in rulings plaintiff does not
challenge on appeal. The remainder did not include any evidence
that Nissan ever did any business or directed products into
California.
Primarily, plaintiff relied on the declaration of Paul
Herbert, a self-described “trucking and forklift expert.” Herbert
concluded that the forklift at issue was manufactured by Nissan
“for export to the United States and Canada.” In paragraph 19(e)
of his declaration, he also concluded that the specific forklift in
this case “was exported by Nissan Motor Co Ltd., directly or
indirectly, to the United States.” Herbert did not say what he
meant by “directly or indirectly.” He also did not claim the forklift
was exported to California.
Herbert next opined that in or around 1986, Nissan was
“marketing, selling, servicing and advertising their forklifts,
including forklift model number DF05N70V, in California”—but

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also that in or around 1986, Nissan was “marketing, selling and
advertising their forklifts, directly or indirectly, to California
residents.” (Italics added.) The court later found that these two
statements conflicted and the latter statement in paragraph
19(g)—the one including the words “directly or indirectly”—
controlled.
Herbert did not identify the factual basis for his “directly or
indirectly” opinion in paragraph 19(g). To the extent he relied on
a United States International Trade Commission report for this
opinion, the court denied plaintiff’s request for judicial notice of
that report, finding that “[n]othing in the report discusses
California, or discusses how the imports got from [Nissan] to the
United States … or, more specifically, to CA.” And to the extent
Herbert relied on a series of newspaper advertisements and
articles involving the sale of forklifts, the court also denied
plaintiff’s request for judicial notice of those documents.
Herbert also opined in paragraph 19(h) that in or around
1986, Nissan was “providing after-market service, including
issuing service and technical bulletins, for their forklifts that
were located in California.” The court found this statement to be
unsupported by the cited exhibits.
Last, Herbert opined in paragraph 19(i) that Nissan
“fostered ongoing relationships with the residents of California
that owned their forklifts by … supplying their original forklift
parts to California residents and issuing service, advisory and
technical bulletins, for forklifts that were located in California.”
The court found this statement to be unsupported, and sustained
Nissan’s objection.
Following an unreported hearing on August 26, 2021, the
court granted the motion to quash. The court found that plaintiff

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“failed to show, under the test of J. McIntyre [v. Machinery, Ltd.
v. Nicastro (2011) 564 U.S. 873 (J. McIntyre)], that [Nissan] is
subject to jurisdiction in California.”3 The court also found
plaintiff failed to show that Nissan “marketed its products in
California and/or provided after-market service for its products in
California.” This appeal followed.

DISCUSSION

1. The Appellant’s Burden on Appeal
The most fundamental rule of appellate review is that the
judgment or order challenged on appeal is presumed to be correct,
and “it is the appellant’s burden to affirmatively demonstrate
error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“ ‘All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.’ ” (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court. (See
Claudio v. Regents of the University of California (2005) 134
Cal.App.4th 224, 230.) When an opening brief fails to make
appropriate references to the record in connection with points
urged on appeal, the appellate court may treat those points as
waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v.

3 This case held that merely placing a product into the stream of
commerce, even with knowledge that the product might enter the
forum state, is not a sufficient basis for personal jurisdiction over a
nonresident defendant. (J. McIntyre, supra, 564 U.S. 873, 885–886
(plur. opn.).)

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GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368,
384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771,
779–801 [several contentions on appeal forfeited because
appellant failed to provide record citations demonstrating it
raised those contentions at trial].) Matters not properly raised or
that lack adequate legal discussion will be also deemed forfeited.
(See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)
A party who contends that a particular finding is not
supported by substantial evidence is obligated to set forth in its
brief all the material evidence on the point, not merely the
party’s own evidence. (Boeken v. Philip Morris, Inc. (2005) 127
Cal.App.4th 1640, 1657–1659.) Facts must be presented in the
light most favorable to the judgment (id. at pp. 1657–1658), and
the burden on appellant to provide a fair summary of the
evidence “ ‘ “grows with the complexity of the record.
[Citation.]” ’ ” (Myers v. Trendwest Resorts, Inc. (2009) 178
Cal.App.4th 735, 739 (Myers); see Cal. Rules of Court, rule
8.204(a)(1)(C)4 [briefs must support any reference to a matter in
the record with a citation to the record]; rule 8.204(a)(2)(C)
[appellant’s opening brief must “[p]rovide a summary of the
significant facts limited to matters in the record”].) The appellant
forfeits or waives a claim of lack of substantial evidence to
support a finding by failing to set forth, discuss and analyze all
the evidence on that point. (See Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881 [error is deemed to be waived]; Myers,
supra, 178 Cal.App.4th at p. 749 [same].)
An appellant has the burden not only to show error but
prejudice from that error. (Cal. Const., art. VI, § 13.) If an

4 All further rule citations are to the California Rules of Court.

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appellant fails to satisfy that burden, his argument will be
rejected on appeal. (Century Surety Co. v. Polisso (2006) 139
Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will
not reverse the judgment in the absence of an affirmative
showing there was a miscarriage of justice. [Citations.] Nor will
this court act as counsel for appellant by furnishing a legal
argument as to how the trial court’s ruling was prejudicial.
[Citations.]” (Ibid.)
2. Legal Principles and Standard of Review
“California courts may exercise personal jurisdiction on any
basis consistent with the Constitutions of California and the
United States.” (Pavlovich v. Superior Court (2002) 29 Cal.4th
262, 268 (Pavlovich); Code Civ. Proc., § 410.10.) A state court’s
assertion of personal jurisdiction over a nonresident defendant
who has not been served with process within the state comports
with the requirements of the due process clause of the federal
Constitution if the defendant has such minimum contacts with
the state that the assertion of jurisdiction does not violate
traditional notions of fair play and substantial justice. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444
(Vons); Ford Motor Company v. Montana Eighth Judicial Dist.
Court (2021) 592 U.S. ___ [209 L.Ed.2d 225, 141 S.Ct. 1017,
1024].)
“Personal jurisdiction may be either general or specific.”
(Vons, supra, 14 Cal.4th at p. 445.) Here, plaintiff does not
contend Nissan is subject to general jurisdiction. We therefore
consider only whether Nissan is subject to this California lawsuit
based on specific jurisdiction. There are three requirements for
the exercise of specific jurisdiction: (1) the defendant has
purposefully availed itself of forum benefits; (2) the controversy is

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related to or arises out of the defendant’s contacts with the
forum; and (3) the assertion of personal jurisdiction would
comport with fair play and substantial justice. (Pavlovich, supra,
29 Cal.4th at p. 269.)
“When a defendant moves to quash service of process on
jurisdictional grounds, the plaintiff has the initial burden of
demonstrating facts justifying the exercise of jurisdiction.
[Citation.] Once facts showing minimum contacts with the forum
state are established, however, it becomes the defendant’s burden
to demonstrate that the exercise of jurisdiction would be
unreasonable. [Citation.] 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, supra, 14 Cal.4th at p.
449.) Moreover, “whenever conflicting evidence is presented in
affidavits on a motion to quash, it is presumed the trial court
resolved such conflicts against the appellant and in support of its
order.” (Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1359.) “An
unverified complaint has no evidentiary value in meeting the
plaintiff’s burden of proving minimum contacts. [Citation.] The
appellate court generally may not consider evidence not before
the trial court.” (DVI, Inc. v. Superior Court (2002) 104
Cal.App.4th 1080, 1090–1091.)
3. Plaintiff’s appellate briefs are fatally deficient.
We begin with several observations about plaintiff’s
appellate briefs. As just explained, the applicable standard of
review requires us to examine the legal basis of the claim at
issue, the evidence presented by the moving party, and the

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evidence submitted by the opposing party, to determine whether
the court erred in granting Nissan’s motion to quash. But as
acknowledged by plaintiff in her reply brief, other than the
purposeful availment requirement, she does not address the two
other requirements for exercising specific jurisdiction over a
nonresident: whether the controversy arises out of Nissan’s
contact with the forum and whether the assertion of personal
jurisdiction would comport with notions of fair play and
substantial justice. This omission is fatal. Any claimed error
concerning the court’s purposeful availment determination
cannot be prejudicial unless plaintiff also carried her burden of
proving all the requirements for establishing specific jurisdiction
over Nissan. (See Pavlovich, supra, 29 Cal.4th at p. 269 [specific
jurisdiction requirements]; Century Surety Co. v. Polisso, supra,
139 Cal.App.4th at p. 963 [prejudice].) Notably, plaintiff provides
no authority to support her position that “there was no need for
[plaintiff] to address the related to/arise out of, and the fair
play/substantial justice, elements because the trial court did not
base its decision on it.”
Nor does the opening brief include any meaningful
discussion or analysis of the evidence presented by Nissan, or of
the three cases cited by plaintiff to support her claim of error.
Instead, plaintiff asserts, without providing any context
whatsoever, that the evidence relied upon by the court to rule on
Nissan’s motion to quash is not in dispute. She also does not
explain how the cited cases provide a basis for finding specific
jurisdiction over Nissan and reversing the court’s order.
(See Howard v. American National Fire Ins. Co. (2010) 187
Cal.App.4th 498, 523 [“Conclusory assertions of error are
ineffective in raising issues on appeal.”].) In any event, plaintiff is

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mistaken. The evidence supporting the exercise of specific
jurisdiction over Nissan was in dispute. At minimum, Herbert’s
assertion that Nissan was marketing, selling, and advertising its
forklifts, directly or indirectly, to California residents conflicted
with Trussell’s declaration that Nissan does not conduct business
in California, does not sell or distribute vehicles or parts in
California, and never exported the forklift to California or the
United States.
To the extent plaintiff suggests that Nissan conducted
business in California indirectly through a third party, Trussell
stated that its California subsidiary, NNA—the entity
responsible for the distribution and sale of vehicles in the United
States—is not Nissan’s agent and Nissan does not exercise any
day-to-day control over NNA. It is also well-settled that “neither
ownership nor control of a subsidiary corporation by a foreign
parent corporation, without more, subjects the parent to the
jurisdiction of the state where the subsidiary does business.”
(Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th
523, 540.)
In addition, it is not enough to merely assert that Nissan
should be subjected to California’s jurisdiction because Trussell
did not say that Nissan was not indirectly marketing, selling, and
advertising its forklifts to California residents. It is plaintiff’s
burden to present evidence and analysis supporting her chosen
jurisdictional theory. Moreover, as noted, much of plaintiff’s
evidence involving Nissan’s purported business activities was
held inadmissible or unpersuasive and she does not challenge
those rulings on appeal. And while the court may have found
Herbert’s statement in paragraph 19(g) that Nissan indirectly
marketed, sold, serviced, or advertised forklifts in California

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through a distributor admissible, the court did not find that the
statement was true or persuasive. Put another way, plaintiff’s
contention that the court “accepted” plaintiff’s evidence is
undermined by its ultimate finding that she did not show that
Nissan is subject to jurisdiction in California.
We could conclude our analysis here based upon plaintiff’s
failure to carry her burden on appeal. Instead, we briefly address
her contention that the court erred in finding that Nissan did not
purposely avail itself of California’s benefits and protections.
4. Plaintiff did not show that Nissan purposely availed
itself of the benefits and protections of this forum.
Although not entirely clear, plaintiff contends the trial
court had specific jurisdiction over Nissan because it directed
some unidentified subsidiary or distributor to carry out business
activities in California on Nissan’s behalf. We are not persuaded.
When commercial activities are conducted on behalf of an
out-of-state party, “those activities may sometimes be ascribed to
the party, [citation], at least where he is a ‘primary [participant]’
in the enterprise and has acted purposefully in directing those
activities[.]” (Burger King Corp. v. Rudzewicz (1985) 471 U.S.
462, 479, fn. 22.) For example, Empire Steel Corp. v. Superior
Court (1961) 56 Cal.2d 823 held a foreign corporation could be
subject to specific jurisdiction in California where the claims
asserted arose out of the parent’s manipulation of the subsidiary.
(Id. at p. 832.) The court concluded the parent corporation was
subject to jurisdiction in California because it “knowingly caused
its California subsidiary to make the contracts in suit” and
therefore “engaged in activities creating substantial contacts
within California in relation to the claim asserted.” (Ibid.)

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 Here, there is no such evidence or finding.5 In the portion of
his declaration relied on by plaintiff, Herbert said Nissan
marketed, sold and advertised its forklifts “directly or indirectly”
to California residents. This statement did not compel the court
to conclude that Nissan deliberately directed someone else to
market, sell or advertise forklifts in California. Saying
“indirectly” does not differentiate, for example, between Nissan
deliberately directing another entity to market forklifts in
California, and Nissan merely selling forklifts to that entity and
the entity marketing them in California. The former might be
purposeful availment; the latter is not. Put differently, selling a
product to another entity, even with knowledge that the entity
will then sell it in California, is not, by itself, purposeful
availment. (See Bombardier Recreational Products Inc. v. Dow
Chemical Canada ULC (2013) 216 Cal.App.4th 591, 604
[although the company knew when it contracted to provide fuel
tanks that they would be used in personal watercraft that would
be sold in California, it would still not provide sufficient
minimum contacts with California].)
To summarize, Herbert’s conclusory declaration could be
consistent with the possibility of purposeful availment. But it
could also be consistent with the possibility Nissan merely sold
forklifts to a third party with knowledge they might be marketed
or resold in California. And, of course, we defer to the trial court’s
resolution of evidentiary conflicts and express and implied
findings. (See Kroopf v. Guffey, supra, 183 Cal.App.3d at p. 1359.)

5We disregard plaintiff’s citation to evidence submitted by a different
party after the court granted Nissan’s motion.

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 For these reasons, plaintiff has not met her burden of
demonstrating that the court erred in granting Nissan’s motion
to quash.

DISPOSITION

The order is affirmed. Defendant and respondent Nissan
Motor Co., Ltd. shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

RICHARDSON, (ANNE K.) J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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