VONS COMPANIES INC v. SEABEST FOODS INC

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Court of Appeal, Second District, Division 5, California.

The VONS COMPANIES, INC., Cross–Complainant and Appellant, v. SEABEST FOODS, INC. et al., Cross–Defendants and Respondents.

No. B094228.

Decided: August 16, 1995

Munger, Tolles & Olson, Gregory P. Stone, Joseph D. Lee, Susan R. Szabo, Kristin A. Linsley, and Kristin S. Escalante, Los Angeles, for cross-complainant and appellant. Neil, Dymott, Perkins, Brown & Frank and Thomas M. Dymott;  Laskero & Associates and Michael G. Roddy, San Diego, for cross-defendants and respondents.

I. INTRODUCTION

This litigation stems from an outbreak in January 1993 of serious illness and death attributed to the presence of Escherichia coli (E. coli) bacteria in Jack–in–the–Box hamburgers.   The Vons Companies, Inc. (Vons) processed the hamburger patties involved in the outbreak at its facility in El Monte, California.   The E. coli outbreak led to numerous personal injury lawsuits against Vons.   In a cross-complaint, Vons sought damages and indemnification from numerous entities including certain Jack–in–the–Box franchisees, two of whom operated hamburger fast food establishments in the State of Washington.   Vons alleged the franchisees failed to properly cook the hamburger patties in the State of Washington and thereby caused the E. coli outbreak.   Two Washington franchisees, Seabest Foods, Inc. (Seabest) and Washington Restaurant Management, Inc. (WRMI) successfully moved to quash service on the ground the court lacked personal jurisdiction over them.   Vons appealed.

In its cross-complaint, Vons asserted causes of action against Seabest and WRMI for:  intentional interference with prospective economic advantage;  negligent interference with prospective economic advantage;  negligence;  comparative indemnity;  and equitable indemnity.   Vons alleged:  the defendants 1 “were aware that Vons had actual and prospective economic relationships with customers that shopped in its numerous stores”;  despite that knowledge the employees of the two Washington entities “intentionally and/or recklessly violated the applicable governmental internal cooking standards for beef served to the general public”;  and defendants breached a duty not to mishandle hamburgers processed by Vons by negligently failing to adequately cook them in the State of Washington.   Vons alleged it suffered financial and commercial injury.

II. THE EVIDENCE

A. Vons and Foodmaker, Inc.

Foodmaker, Inc. (Foodmaker) was a Delaware corporation with its principal place of business in San Diego, California.   Foodmaker was the franchiser of Jack–in–the–Box restaurants.   Vons entered into a three-year agreement with Foodmaker in January 1990 to process beef into hamburger patties.   The processing occurred at Vons' El Monte, California assembly plant.   Vons agreed to deliver the hamburger patties to Foodmaker in California.

B. Seabest

Joseph Zacher, Terry Herrick, William O'Connor, and Sudesh Sood entered into 10 franchise agreements with Foodmaker in their individual capacities.   Foodmaker did not permit corporations to be franchisees.   The initial six franchise agreements involving Seabest and Foodmaker were executed in July 1988, in San Diego, California.   Four subsequent franchise agreements were executed in California except that Mr. Zacher executed the agreements in Washington.   The franchise agreements involving Foodmaker and Seabest were expressly deemed made and entered into in California.   The agreements involving Seabest and Foodmaker were governed by California law, with exclusive venue in San Diego.   In 1988, the four individuals formed Seabest, a Washington corporation.   They assigned their franchise interests to it as an independent contractor.   However, the four individuals remained obligated under the franchise agreements in addition to Seabest.   They also served as the directors of Seabest and had equal interests in the venture.2  Mr. Zacher was the only one of the four who received a salary.   Mr. Zacher lived in California during negotiation of the franchise agreements.   He moved to Washington in 1988 to oversee operation of the Jack–in–the–Box restaurants there.   Seabest's board of directors held its annual directors meeting in California on approximately two occasions;  meetings were also held in Washington and, once, in Hawaii.   Prior to the incorporation of Seabest, Mr. Zacher, Mr. O'Connor, Mr. Herrick, and Mr. Sood used the address of Mr. O'Connor's office in Granada Hills, California.3

Mr. Zacher received accounting training from Foodmaker in San Diego in July 1988.   The training occurred over a three-day period.   Mr. Zacher received no other training in California.   Mr. Zacher and his district manager, Debbie Lee, attended training sessions conducted by Foodmaker representatives from San Diego at Foodmaker restaurants in Washington three times a year.

Seabest corresponded with Foodmaker at its San Diego, California, and Tukwila, Washington offices.   Seabest “telepaid” its day-to-day bills to Foodmaker by calling an 800 number in Denver, Colorado.   Seabest's checking account in Washington would be debited for the amounts owed to Foodmaker.   The Denver “exchange house” transmitted the payments to Foodmaker in San Diego.   For approximately the first year of operations, however, Seabest mailed payments to Foodmaker in San Diego.   Monthly profit and loss statements for each of Seabest's 10 franchises were prepared by accountants in San Diego.   Mr. Zacher sent the necessary information to the accountants in San Diego.   The accountants forwarded the profit and loss statements to Foodmaker.   The accounting firm in question was chosen because it had experience with Jack-in-the-Box franchises.

Foodmaker quality specialists residing in Washington inspected Seabest's Jack-in-the-Box restaurants at least once a month.   Foodmaker quality specialists from California rarely inspected Seabest locations;  approximately five such visits were made between 1988 and 1994.   Mr. Zacher attended approximately 10 meetings on behalf of Seabest in California between 1988 and 1994.   These meetings included once or twice a year “franchise communications” meetings, attended by “all the franchisees in a geographic area.”   Mr. O'Connor, Mr. Herrick, and Mr. Sood also attended the franchise communications meetings.

Throughout the operation of the franchises, at least some of the food for each location was purchased from Foodmaker.   The food items purchased from Foodmaker were delivered from its Tukwila, Washington distribution center.   All hamburger patties were delivered to Seabest from Foodmaker's Tukwila distribution center.   Foodmaker's Tukwila distribution center generated all invoices for food delivered to Seabest.   Seabest “telepaid” the invoices through the Denver “exchange house.”   If any of the food purchased from Foodmaker came from California, Mr. Zacher was not aware of it.   Foodmaker did not provide any training to any Seabest representatives in cooking hamburgers or any other food products in California.   Further, Foodmaker did not send representatives to Washington for that purpose.   On at least one occasion, Seabest paid Washington state tax on equipment purchased from Foodmaker.   Vons had no contractual relationship with Seabest.

C. WRMI

Dennis Earls, Lisa Earls, Delmer Earls, and Roger Butler entered into franchise agreements with Foodmaker in their individual capacities.   They thereafter assigned their interests to WRMI, which was incorporated in May 1987.   Delmer Earls signed one of four franchise agreements while in Riverside, California, attending a family reunion.   At that time he also signed an assignment of individual franchise interests.   The franchise agreements were expressly deemed made and entered into in California.   The franchise agreements were governed by California law with exclusive venue in San Diego.

Dennis Earls met with Foodmaker representatives in California on two occasions prior to bring approved as a franchisee.   Two of the WRMI restaurant managers attended training sessions in California.   Ms. Earls received financial training in San Diego over a four day period in May 1987.   Dennis Earls attended Franchise Advisory Council meetings in California six or eight times.   Also, he acted as the representative of franchisees in Washington, Oregon, Hawaii, and Nevada.   Dennis Earls stated he attended meetings with Foodmaker in California five or six times between 1987 and 1994.   According to Foodmaker's director of franchise services, he met with Dennis Earls in California in excess of 10 times.

WRMI made monthly rent, marketing, and royalty payments to Foodmaker by “telepayment.”   Prior to introduction of the telepayment system, the payments were made by mail to San Diego.   WRMI received updates on manuals or similar documents from Foodmaker from time to time.   They were sent half of the time from Tukwila, Washington.   On the remaining occasions, the material were sent from San Diego.   WRMI:  communicated with Foodmaker in San Diego concerning the sale of a restaurant;  faxed financial information to Foodmaker's San Diego offices;  and communicated by telephone with Foodmaker regarding financial information approximately three times a year.

WRMI purchased some equipment from Foodmaker.   Approximately 90 percent of it came from Tukwila, Washington;  the other 10 percent came by mail directly from the vendors.   Foodmaker shipped cash registers, telemoniters, and computers that make up the “sales tracking equipment” to WRMI from California.   The equipment was ordered through a franchise representative in Seattle, Washington.   Once or twice Foodmaker was contacted in California to order new restaurant equipment.

WRMI received food for sale to customers from Foodmaker's Tukwila, Washington distribution center, including hamburger patties.   There was never an occasion when WRMI served hamburger patties to customers that did not come from the Tukwila, Washington distribution center.   In 1993, following the E. coli outbreak, WRMI learned Vons produced the hamburger patties for Foodmaker in California and delivered them to Seattle, Washington.   Prior to the E. coli outbreak, WRMI did not know from where the Tukwila distribution center was getting the hamburger patties.   Vons had no contractual relationship with WRMI.

III. DISCUSSION

A court of this state may exercise jurisdiction over the parties on any basis consistent with the federal and state Constitutions.  (Code Civ.Proc., § 410.10;  Cornelison v. Chaney (1976) 16 Cal.3d 143, 147, 127 Cal.Rptr. 352, 545 P.2d 264.)   As the Supreme Court explained in Cornelison v. Chaney, supra, 16 Cal.3d at pages 147–148, 127 Cal.Rptr. 352, 545 P.2d 264:  “In a significant line of cases beginning with Internat. Shoe Co. v. Washington (1945) 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95], the United States Supreme Court has defined the parameters of the power of the states to compel nonresidents to defend suits brought against them in the state's courts.  [Citations.]   The general rule is that the forum state may not exercise jurisdiction over a nonresident unless his relationship to the state is such as to make the exercise of such jurisdiction reasonable.  [Citation.]  [¶]  If a nonresident defendant's activities may be described as ‘extensive or wide-ranging’ [citation] or ‘substantial ․ continuous and systematic’ [citation], there is a constitutionally sufficient relationship to warrant jurisdiction for all causes of action asserted against him.   In such circumstances, it is not necessary that the specific cause of action alleged be connected with the defendant's business relationship to the forum.  [¶]  If, however, the defendant's activities in the forum are not so pervasive as to justify the exercise of general jurisdiction over him, then jurisdiction depends upon the quality and nature of his activity in the forum in relation to the particular cause of action.   In such a situation, the cause of action must arise out of an act done or transaction consummated in the forum, or defendant must perform some other act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.   Thus, as the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts, and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend.   The crucial inquiry concerns the character of defendant's activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.  [Citations.]”  (Cornelison v. Chaney, supra, 16 Cal.3d at pp. 147–148, 127 Cal.Rptr. 352, 545 P.2d 264;  fn. omitted.)

 When a defendant moves to quash service of process for lack of personal jurisdiction, the plaintiff bears the initial burden of proof that minimum contacts exist between the defendant and this state to justify imposition of personal jurisdiction.  (State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557, 29 Cal.Rptr.2d 909.)   Once that burden is met, the burden shifts to the defendant to demonstrate that assumption of jurisdiction would be unreasonable.  (Ibid.)  The applicable standard of review was set forth in Great–West Life Assurance Co. v. Guarantee Co. of North America (1988) 205 Cal.App.3d 199, 204, 252 Cal.Rptr. 363, as follows:  “When the evidence of jurisdictional facts is not conflicting, ‘the question of whether defendant is subject to personal jurisdiction is one of law.’  [Citation.]   In such a case, the lower court's determination is not binding on the reviewing court.  [Citation.]   While the parties at times contested each other's characterization of the facts, the evidence presented by each side was not in conflict.   We therefore engage in an independent review of the record.”  (Accord, Pennsylvania Health & Life Ins. Guaranty Assn. v. Superior Court (1994) 22 Cal.App.4th 477, 481, 27 Cal.Rptr.2d 507.)   Further, the determination whether personal jurisdiction exists turns on the facts of each individual case.  (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 486, 105 S.Ct. 2174, 2189–2190, 85 L.Ed.2d 528;  Cornelison v. Chaney, supra, 16 Cal.3d at p. 150, 127 Cal.Rptr. 352, 545 P.2d 264.)

A. There is No General Jurisdiction over Seabest

 Vons contends our courts have general jurisdiction over Seabest.   We disagree.   In Cornelison v. Chaney, supra, 16 Cal.3d at pp. 148–149, 127 Cal.Rptr. 352, 545 P.2d 264, the Supreme Court considered whether a defendant's activities in this state justified the exercise of general jurisdiction over him.   The defendant hauled goods by truck in interstate commerce.   He had made 20 trips into this state over a seven year period to deliver and obtain goods, had an independent contractor relationship with a California broker, and was licensed by the Public Utilities Commission to haul freight.   The California Supreme Court held those contacts were insufficient to justify the exercise of general jurisdiction over the defendant.  (Ibid. )

In Helicopteros Nacionales de Colombia, S.A. v. Hall (1984) 466 U.S. 408, 409–411, 104 S.Ct. 1868, 1869–1871, 80 L.Ed.2d 404, the defendant, a Colombian corporation with its principal place of business in Bogota, was sued in Texas for wrongful death arising out of a helicopter accident in Peru.   The defendant had sent its chief executive officer to Houston, Texas to negotiate a contract to provide helicopters to a Peruvian consortium.   The Peruvian consortium was the alter ego of a Houston, Texas joint venture.   The contract was signed in Peru.   Thereafter, the defendant purchased helicopters, spare parts, and accessories from a company in Fort Worth, Texas.   It also sent prospective pilots to Forth Worth for training and to ferry helicopters to South America.   Further, it sent management and maintenance personnel to Fort Worth “to receive ‘plant familiarization’ and for technical consultation.”   (Id. at p. 411, 104 S.Ct. at 1870.)   The defendant received over $5 million dollars in payments from the Peruvian consortium drawn on a Houston bank into bank accounts in New York and Florida.   The United States Supreme Court held the contacts between the defendant and the State of Texas were insufficient to impose general jurisdiction.   The court noted:  “Helicol never has been authorized to do business in Texas and never has had an agent for the service of process within the State.   It never has performed helicopter operations in Texas or sold any product that reached Texas, never solicited business in Texas, never signed any contract in Texas, never had any employee based there, and never recruited an employee in Texas.   In addition, Helicol never has owned real or personal property in Texas and never has maintained an office or establishment there.   Helicol has maintained no records in Texas and has no shareholders in that State.”  (Id. at pp. 411–412, 104 S.Ct. at 1870–1871.)   The court held the chief executive officer's trip to Houston to negotiate the contract was not “a contact of a ‘continuous or systematic’ nature․”  (Id. at p. 416, 104 S.Ct. at 1873.)   In addition, the unilateral act of a third person in drawing checks against a Houston bank was not an appropriate consideration.4  (Id. at pp. 416–417, 104 S.Ct. at 1872–1874.)   The court held further:  “[W]e hold that mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.   Nor can we conclude that the fact that Helicol sent personnel into Texas for training in connection with the purchase of helicopters and equipment in that State in any way enhanced the nature of Helicol's contacts with Texas.   The training was a part of the package of goods and services purchased by Helicol from Bell Helicopter.   The brief presence of Helicol employees in Texas for the purpose of attending the training sessions [was not a significant contact].”  (Id. at p. 418, 104 S.Ct. at 1874.)

Seabest's activities in this state likewise cannot be described as “ ‘extensive or wideranging’ ” or “ ‘substantial ․ continuous and systematic.’ ”  (Cornelison v. Chaney, supra, 16 Cal.3d at p. 147, 127 Cal.Rptr. 352, 545 P.2d 264.)   Seabest's assignors were California residents who entered into franchise agreements with Foodmaker to operate Jack-in-the-Box restaurants in the State of Washington.   The franchise agreements were in large part executed in California and were expressly deemed to have been made and entered into in this state.   Prior to Seabest's incorporation, its assignors, Mr. Zacher, Mr. O'Connor, Mr. Herrick, and Mr. Sood, used Mr. O'Connor's office address in Granada Hills, California, in connection with the procurement of the franchises.   However, Seabest never had any place of business in California.   Following the successful negotiation of the agreements, Mr. Zacher, one of the assignors, moved to the state of Washington to oversee operation of the Jack-in-the-Box restaurants there.   In July 1988, he returned to San Diego for three days of accounting training.   Mr. Zacher, one of Seabest's assignors, also attended meetings on behalf of Seabest in California approximately 10 times between 1988 and 1994.   These included “franchise communications” meetings.   Seabest assignors, Mr. O'Connor, Mr. Herrick, and Mr. Sood also attended “franchise communications” meetings.   Two annual board of directors meetings were held in California.   Others were held in Washington, and once, in Hawaii.   During the first year of operation, Seabest mailed royalty and other payments to Foodmaker in San Diego.   Thereafter, such bills were “telepaid” through an “exchange house” in Denver, Colorado.   Seabest used accountants in California who forwarded financial information to Foodmaker.   In short, the contacts between Seabest and this state all related to their franchise arrangement with Foodmaker.   Seabest has never been authorized to do business in California and nor ever had an agent for service of process in this state.   It has never operated its business in this state nor ever solicited business here.   Seabest has no employees based here.   In addition, Seabest owns no real or personal property in California and has never maintained an office or establishment here.   Trips to California by Seabest personnel have all been for the purpose of negotiation, training, or meetings in connection with its franchises in Washington.   Under these circumstances, we find Seabest's contacts with California are insufficient to support the exercise of general jurisdiction over it.

B. There is no Specific Jurisdiction over Seabest or WRMI

 We next consider whether a court of this state can exercise specific jurisdiction over Seabest and WRMI.   The United States Supreme Court has held:  “The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’  International Shoe Co. v. Washington[, supra,] 326 U.S. at [p.] 319 [66 S.Ct. at p. 160].  By requiring that individuals have ‘fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,’ [citation], the Due Process Clause ‘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,’ [citation].  [¶]  Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this ‘fair warning’ requirement is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum, [citation], and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities [citation]․  And with respect to interstate contractual obligations, we have emphasized that parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.  [Citations.]”  (Burger King Corp. v. Rudzewicz, supra, 471 U.S. at pp. 471–472, 105 S.Ct. at pp. 2181–2182, fns. omitted.)   A finding of specific jurisdiction requires three things:  “ ‘(1) The nonresident defendant must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws[;]  (2) [t]he claim must be one that arises out of or results from the defendant's forum-related activities[;  and] (3) [the] [e]xercise of jurisdiction must be reasonable.’ ”  (Thiebaut v. Blue Cross of Indiana (1986) 178 Cal.App.3d 1157, 1160, 224 Cal.Rptr. 277;  Cubbage v. Merchent (9th Cir.1984) 744 F.2d 665, 668.)   Courts have consistently focused on the requirement that a specific jurisdiction finding “ ‘depends upon the quality and nature of [its] activity in the forum in relation to the particular cause of action.’ ”  (Pennsylvania Health & Life Ins. Guaranty Assn. v. Superior Court, supra, 22 Cal.App.4th at p. 481, 27 Cal.Rptr.2d 507;  J.M. Sahlein Music Co. v. Nippon Gakki Co., Ltd., supra, 197 Cal.App.3d at pp. 543–545, 243 Cal.Rptr. 4;  accord, Cornelison v. Chaney, supra, 16 Cal.3d at p. 148, 127 Cal.Rptr. 352, 545 P.2d 264;  Fisher Governor Co. v. Superior Court (1959) 53 Cal.2d 222, 226, 1 Cal.Rptr. 1, 347 P.2d 1;  Edmunds v. Superior Court (1994) 24 Cal.App.4th 221, 233, 29 Cal.Rptr.2d 281.)

1. Purposeful availment

The California Supreme Court has held:  “[A] defendant's activity must consist of ‘an act done or transaction consummated in the forum State,’ or ‘some [other] act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’  [Citation.]”  (Buckeye Boiler Co. v. Superior Court (1969) 71 Cal.2d 893, 898, 80 Cal.Rptr. 113, 458 P.2d 57.)   We need not decide whether defendants' activities in this state meet these criteria.   Even if defendants' purposefully availed themselves of the privilege of conducting activities in this state, the cause of action at issue here did not arise out of or relate to those activities.

Vons relies on Burger King Corp. v. Rudzewicz, supra, 471 U.S. at page 472, 105 S.Ct. at pages 2181–2182, a contract breach and trademark infringement case, for the proposition the defendants purposefully directed their activities into California.   Specific jurisdiction in Burger King Corp., a case based entirely on a contractual agreement, was premised on a Florida long-arm statute extending jurisdiction to any nonresident who breached a contract in that state.   The long-arm statute applied to a nonresident who failed to perform acts required by the contract to be performed in Florida “so long as the cause of action arises from the alleged contractual breach.”  (Id. at pp. 463–464, 105 S.Ct. at p. 2177.)   The cause of action in that case was for breach of a franchise agreement and trademark infringement brought by Burger King Corporation, a Florida corporation, against a Michigan franchisee.   (Ibid.)  Hence the cause of action “grew directly out of” the franchise contract, the defendant's only contact with Florida.  (Id. at p. 479, 105 S.Ct. at pp. 2185–2186.)   Notably, the United States Supreme Court stated that “an individual's contract with an out-of-state party alone [cannot] automatically establish sufficient minimum contacts in the other party's home forum․”  (Id. at p. 478, 105 S.Ct. at p. 2185.)   Whether defendants in the present case, consistent with the Due Process Clause, could be required to litigate an action for breach of their franchise agreements with Foodmaker, the issue in Burger King Corp. v. Rudzewicz, supra, 471 U.S. at page 463, 105 S.Ct. at page 2177, is not the question before this court.

2. Arising out of

 In order for a court to assert specific jurisdiction over a nonresident, the particular cause of action must arise out of or be connected with the defendant's forum-related activity.   The Court of Appeal discussed this aspect of the analysis in Ratcliffe v. Pedersen (1975) 51 Cal.App.3d 89, 95–96, 123 Cal.Rptr. 793.   The court stated:  “When seeking to invoke jurisdiction based upon minimum contacts, it is enough to show that the cause of action is ‘sufficiently connected’ with the forum-related activity so that it cannot be said that the cause of action is ‘entirely distinct’ from that activity.  [Citations.]   One test is to ascertain whether the economic activity put in motion the events which ultimately gave rise to [the plaintiff's] cause of action.   Under this test, the cause of action is ‘sufficiently connected’ with the defendant's forum-related activity whenever there is a causal connection between the two in the sense that the cause of action would not have arisen except for the economic activity.”  (Ibid.)  Our courts have adopted a “but for” test in determining whether a cause of action arises out of or is related to a defendant's contacts with the forum.  (Dialysis at Sea, Inc. v. Superior Court (1989) 216 Cal.App.3d 788, 795, 265 Cal.Rptr. 71;  Sklar v. Princess Properties International, Ltd. (1987) 194 Cal.App.3d 1202, 1208, 240 Cal.Rptr. 102;  Circus Circus Hotels, Inc. v. Superior Court (1981) 120 Cal.App.3d 546, 569, 174 Cal.Rptr. 885.)   In Circus Circus Hotels, Inc., California residents brought an action here against a Nevada hotel.   The hotel had advertised in California newspapers and supplied a toll-free number for reservations.   The plaintiffs' hotel room in Nevada had been burglarized.   The Court of Appeal held the “but for” test was not met.   The court held:  “The acts or omissions of defendant alleged to be the proximate cause of the loss were the failure to rekey the lock to room 1319 and failure to warn plaintiffs of the earlier burglary of that very room.   It could not be seriously contended that the defendant's advertising was the proximate cause of the burglary, i.e., that the burglary would not have happened but for the advertising.”  (Circus Circus Hotels, Inc. v. Superior Court, supra, 120 Cal.App.3d at p. 569, 174 Cal.Rptr. 885;  original italics.)   Similarly, in Sklar v. Princess Properties International, Ltd., supra, 194 Cal.App.3d at page 1205, 240 Cal.Rptr. 102, the plaintiff filed an action in California against a Bermuda hotel for injuries sustained in a slip and fall at the hotel.   The Court of Appeal, in an opinion authored by our colleague, Presiding Justice Mildred Lillie, held there was an insufficient connection for purposes of specific jurisdiction between the hotel's advertising activities in California and the plaintiff's accident.   The court stated:  “It cannot seriously be contended that sale to plaintiff in California of accommodations at defendant's hotel in Bermuda was the proximate cause of plaintiff's personal injuries ․;   in other words, it cannot be said that the accident would not have happened but for the sale of the hotel accommodations to plaintiff.”  (Id. at p. 1208, 240 Cal.Rptr. 102.)

In the present case, defendants' act or omission alleged to have caused damage to Vons and for which it seeks indemnification is the undercooking of hamburgers in the state of Washington.   It cannot seriously be contended that but for defendants activities in California, as assignees of the franchisees, the hamburger patties would not have been undercooked in Washington.   Stated differently, the franchiser-franchisee relationship in the present case between defendants' assignors and Foodmaker did not bring Vons into “tortious ‘striking distance’ ” of Seabest and WRMI.  (Dialysis at Sea, Inc. v. Superior Court, supra, 216 Cal.App.3d at p. 795, 265 Cal.Rptr. 71.)   Defendants and their assignors had no relationship with Vons.   Defendants and their assignors made no purchases from Vons.   Indeed, prior to the E. coli outbreak, defendants and their assignors were unaware the hamburger patties they purchased from Foodmaker were processed by Vons.   In short, the causal link between defendants' assignors' franchise relationship with Foodmaker and the alleged failure to properly cook hamburgers in Washington is too attenuated to say the injury arose from the activities of Seabest and WRMI in this state.  (Fisher Governor Co. v. Superior Court, supra, 53 Cal.2d at pp. 223, 226, 1 Cal.Rptr. 1, 347 P.2d 1 [California sales activity insufficient to permit suit when accident occurred in Idaho];  Watson's Quality Turkey Products, Inc. v. Superior Court (1974) 37 Cal.App.3d 360, 368, 112 Cal.Rptr. 345 [cause of action unrelated to defendant's California activities];  accord, Cornelison v. Chaney, supra, 16 Cal.3d at p. 149, fn. 5, 127 Cal.Rptr. 352, 545 P.2d 264;  cf. Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 664, 671, 190 Cal.Rptr. 175, 660 P.2d 399 [Fisher distinguished because defective machine used in California].)

Vons cites Shute v. Carnival Cruise Lines (9th Cir.1990) 897 F.2d 377, 386, reversed in Carnival Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, 589–597, 111 S.Ct. 1522, 1525–1529, 113 L.Ed.2d 622 in arguing this court should adopt a less stringent standard of causation.   In Shute, the Ninth Circuit Court of Appeals held a nonresident cruise line was subject to specific jurisdiction in a personal injury action arising from an injury on its ship.   The court held that but for the cruise line's advertising and solicitation of business in the state of Washington, the plaintiff would not have boarded the ship and her injury would not have occurred.  (Id. at p. 386;  accord, Alexander v. Circus Circus Enterprises, Inc. (9th Cir.1991) 939 F.2d 847, 853, opn. vacated Alexander v. Circus Circus Enterprises, Inc. (9th Cir.1992) 972 F.2d 261, 262.)   We decline to adopt this more expansive test.   The Ninth Circuit itself has questioned the continuing vitality of the test applied in Shute.   In Omeluk v. Langsten Slip & Batbyggeri A/S (9th Cir.1995) 52 F.3d 267, 271–272, the court stated:  “The authority of our decision in Shute is questionable.   The Supreme Court reversed our decision in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991).   The Supreme Court did not reach the issue of whether the ‘but for’ test was appropriate in Carnival Cruise Lines.   But neither did the Court expressly note that the jurisdiction issue was not before it, [citation], or limit its grant of certiorari to a separable issue.   Because of the posture of the Court's reversal of Shute, it is not clear whether the ‘but for’ test survives.”

Vons also cites In re Oil Spill by Amoco Cadiz Off Coast of France (7th Cir.1983) 699 F.2d 909, 915–917, for the proposition “that where the relevant contact with the forum state is a contractual relationship, claims by plaintiffs who are not parties to the contract can ‘arise out of’ such contacts.”   The Seventh Circuit has emphasized Amoco Cadiz involved a suit where the non-resident's contractual duties in the forum state were at issue.   (J. Walker & Sons v. DeMert & Dougherty, Inc. (7th Cir.1987) 821 F.2d 399, 403–404.)   We have no quarrel with that proposition in the abstract.   We simply hold the causes of action in this case asserted by Vons did not arise out of defendants' assignors' contractual relationship with Foodmaker in this case.

3. Reasonableness

Because Seabest and WRMI's contacts with California are insufficient to justify the exercise of personal jurisdiction over them, we need not consider whether the exercise of such jurisdiction would be reasonable.  (Sibley v. Superior Court of Los Angeles County, 16 Cal.3d 442, 448, 128 Cal.Rptr. 34, 546 P.2d 322.)

IV. DISPOSITION

The orders granting motions to quash service of summons brought by Seabest Foods, Inc. and Washington Restaurant Management, Inc. are affirmed.   Seabest Foods, Inc. and Washington Restaurant Management, Inc. are to recover their costs on appeal from The Vons Companies, Inc.

FOOTNOTES

1.   For ease of reference, we refer to the cross-defendants Seabest and WRMI as defendants.

2.   Following Mr. O'Connor's death, his wife succeeded to his interest in Seabest and became a director thereof.

3.   The Granada Hills address also appeared on a lease dated September 1989 between Seabest and Sunset Square Joint Ventures as a “business home office address.”   However, Mr. Zacher's Washington address was also listed as a “business home office address.”

4.   The activity in question must be initiated by the defendant.   (Rocklin de Mexico, S.A. v. Superior Court (1984) 157 Cal.App.3d 91, 97, 203 Cal.Rptr. 547.)   Contact with the forum involving the defendant which is instituted by another person does not meet the constitutional requirements.  (Ibid.)  In other words, unilateral activity by Vons or Foodmaker cannot satisfy the requirement of the defendants' contact with this state.  (Burger King Corp. v. Rudzewicz, supra, 471 U.S. at pp. 474–475, 105 S.Ct. at pp. 2183–2184;  Hanson v. Denckla (1958) 357 U.S. 235, 253, 78 S.Ct. 1228, 1239–1240, 2 L.Ed.2d 1283;  Cornelison v. Chaney, supra, 16 Cal.3d at p. 149, 127 Cal.Rptr. 352, 545 P.2d 264;  J.M. Sahlein Music Co. v. Nippon Gakki Co., Ltd. (1987) 197 Cal.App.3d 539, 544–545, 243 Cal.Rptr. 4.)

TURNER, Presiding Justice.

ARMSTRONG and GODOY PEREZ, JJ., concur.