HENNEN v. KMVT BROADCASTING INC (1995)

Plaintiff Donna Hennen appeals from an order quashing service of summons based upon lack of personal jurisdiction over defendant KMVT Broadcasting, Inc. (hereinafter, KMVT), a television station in Twin Falls, Idaho. Plaintiff also appeals from orders denying motions to compel the production of documents from KMVT and two other defendants, KMVT employees Charles Lemmon and Pat Marcantonio, and from an order denying a motion to compel Lemmon to answer one deposition question.¹

PROCEDURAL HISTORY AND FACTS

Plaintiff is an astrologer. She filed a complaint in Los Angeles Superior Court alleging causes of action for (1) slander per se by Roseanne and Tom Arnold,² and the KMVT defendants as a result of a news broadcast which related that plaintiff was fired by the Arnolds for providing bad astrology-based advice, and (2) spoilation of evidence as to the KMVT defendants because of their business practice of destroying reporters' notes. The allegedly defamatory story was broadcast by KMVT in the small town of Twin Falls, Idaho. The story did not air in California. At the time the story was broadcast, plaintiff resided in Idaho. During the litigation of her action she also resided in Idaho.

KMVT is a Nevada corporation with its principal place of business in Twin Falls, Idaho. KMVT does not own any personal or real property in the state of California and is not registered to do business in California. KMVT has not paid any California income or property taxes, has no offices in California, and has no California telephone or fax number. KMVT also does not broadcast into California. KMVT, a CBS affiliate, contracts with CBS for programming and uses an independent advertising agency which does some business in California to sell advertising time. KMVT also purchases certain television equipment and television programming from California companies, and has other tenuous and sporadic contacts with the state of California, as discussed hereinafter.

Roseanne and Tom Arnold are California residents, and plaintiff was a resident of California at the time she was Roseanne's astrologer. According to plaintiff, Roseanne publicly praised her in California and referred to her publicly as Roseanne's “secret astrologer” and a “prophet.” After plaintiff suffered financial problems and moved from California to Twin Falls, Idaho, she advertised herself as Roseanne's astrologer in a local newspaper. However, Roseanne had not sought plaintiff's astrological services for almost three years. Lemmon, on behalf of KMVT, faxed a letter to the Arnolds, who responded by telephoning KMVT news reporter Marcantonio and making allegedly false and defamatory statements about plaintiff. Marcantonio took notes regarding what the Arnolds related to her and thereafter solicited plaintiff for an interview as the basis for a news story regarding her work as an astrologer. Plaintiff advised Lemmon that she would not be able to use Roseanne Arnold's name during the interview because Roseanne's representative had asked her not to use Roseanne's name for her own professional advantage. Plaintiff also revealed that she had withdrawn her ad from the local newspaper.

Thereafter, Marcantonio and a KMVT camera crew interviewed plaintiff at her home. During the interview, Marcantonio asked her if she wanted to talk about the Arnolds and stated to plaintiff that the Arnolds had said, among other things, “that they had fired the plaintiff for giving them bad advice.” KMVT then broadcast a story on plaintiff's astrology consultation business, characterizing plaintiff as a Twin Falls woman who was fired by the Arnolds for giving bad astrological advice.³ According to plaintiff, the broadcast depicted her as a fraud and “not competent in her profession.”

The Los Angeles Superior Court granted KMVT's motion to quash service of summons based upon lack of personal jurisdiction. The court also denied plaintiff's motions to compel KMVT, Lemmon and Marcantonio to produce certain documents and items at their court-ordered out-of-state depositions, and denied plaintiff's motion to compel Lemmon to answer a certain deposition question at his court-ordered out-of-state deposition. Plaintiff appeals.

DISCUSSION

The seminal case of Internat. Shoe Co. v. Washington (1945) 326 U.S. 310 established the law defining the limits of state court jurisdiction over nonresident defendants, setting forth the rule that the forum state may not exercise jurisdiction over a nonresident unless the nonresident's relationship to the state is such as to make the exercise of such jurisdiction reasonable. “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.”’ (Id. at p. 316.) California's “long arm” statute (Code Civ. Proc., § 410.10) provides that California may exercise jurisdiction over a nonresident “on any basis not inconsistent with the Constitution of this state or of the United States.” If a nonresident defendant's activities in California are “extensive or wide-ranging” (Buckeye Boiler Co. v. Superior Court (1969) 71 Cal.2d 893, 898-899) or “substantial ․ continuous and systematic” (Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 447-448), there is a constitutionally sufficient relationship to support jurisdiction for any cause of action. (Cornelison v. Chaney (1976) 16 Cal.3d 143, 147.)

Jurisdiction may be either of a general or a limited nature. “If a nonresident's activities are sufficiently wide-ranging, systematic and continuous, it may be subject to jurisdiction within the state on a cause of action unrelated to those activities. However, where the activity is less extensive, the cause of action must arise out of or be connected with the defendant's forum-related activity. [Citation.]” (Walter v. Superior Court (1986) 178 Cal.App.3d 677, 680; see Dialysis at Sea, Inc. v. Superior Court (1989) 216 Cal.App.3d 788, 792.) Whether jurisdiction exists depends on the particular facts of each case and cannot be decided by applying a mechanical test or a precise formula. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 478-479; Cornelison v. Chaney, supra, 16 Cal.3d at p. 150.)

Applying these rules to the present case, we conclude KMVT's activities in California are not so substantial or wide ranging as to justify general jurisdiction over it to adjudicate all matters regardless of their relevance to the cause of action alleged by plaintiff. KMVT is an affiliate of CBS, which is based largely in California, and KMVT airs CBS programs and advertising. However, CBS is a New York-based company, and the presence of its offices in California would be relevant to personal jurisdiction over CBS, but not to jurisdiction over KMVT. CBS's contacts with California thus cannot properly be imputed to KMVT. (See Burger King Corp. v. Rudzewicz, supra, 471 U.S. at p. 475; Fields v. Sedwick Associated Risks, Ltd. (9th Cir. 1986) 796 F.2d 299, 301-302.) The use by KMVT of an independent agent doing some business in California to sell advertising time is also not determinative. (See Fisher Governor Co. v. Superior Court (1959) 53 Cal.2d 222, 225.) Moreover, KMVT's independent advertising agency is a Delaware corporation with its principal place of business in New York. KMVT has had only infrequent contact with its advertising agents' offices in California.

It is also of no consequence that KMVT makes certain purchases, such as television equipment, supplies and programming, from California companies. In Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 411, the Supreme Court held that a nonresident's regular purchases of over $4 million of goods and services from the manufacturer in the forum state did not create sufficiently continuous and systematic contacts for general jurisdiction purposes. Similarly, the existence of 18 studios in California from which KMVT purchases programming, with numerous contracts containing California choice of law clauses, does not amount to sufficiently continuous and systematic contacts. Moreover, none of the California studios, programming or contracts are at issue in the present case. (See Gates Learjet Corp. v. Jensen (9th Cir. 1984) 743 F.2d 1325, 1330-1331.)

Nor are KMVT's occasional and infrequent news gathering and reporting activities sufficient to establish general jurisdiction. KMVT has only “on rare occasions” sent a news team to California to cover a news story. (See Cornelison v. Chaney, supra, 16 Cal.3d at p. 146-147 (approximately 20 trips a year to California in the operation of a business was still insufficient to impose general jurisdiction).) Similarly, even more than occasional telephone calls, faxes and mail from KMVT into the state of California are insufficient to establish our courts' jurisdiction over a nonresident. (See Walter v. Superior Court, supra, 178 Cal.App.3d at p. 682; Floyd J. Harkness Co. v. Amezcua (1976) 60 Cal.App.3d 687, 692.)

The overall picture presented by KMVT's activities is no more compelling than that in Cornelison v. Chaney, supra, 16 Cal.3d 143. In Cornelison, the defendant, who had made 20 trips a year into California over a seven-year period to deliver and obtain goods and was licensed to haul freight by the California Public Utilities Commission and had a contractual relationship with brokers in California, was held by the court not to have subjected himself to the general jurisdiction of the California courts. Likewise, the present case compels no finding of general jurisdiction.

Where the defendant's activities in the forum state are not so pervasive and substantial as to justify the existence of general jurisdiction, then jurisdiction depends upon the quality and nature of the defendant's activities in the forum in relation to the particular cause of action. (Cornelison v. Chaney, supra, 16 Cal.3d at p. 148.) “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.” (Ibid.)

Here, a KMVT news editor initiated the story by contacting the ABC network in Los Angeles, from which it obtained a fax number for Roseanne Arnold (or her agent or publicist). As a result of KMVT's fax to the Arnolds in Los Angeles, they then telephoned KMVT and discussed plaintiff's astrological services to Roseanne. Accordingly, plaintiff urges that the allegedly defamatory news broadcast by KMVT could never have occurred absent its inquiries in California which resulted in its ability to contact the Arnolds and interview them for the news story. Even assuming a direct connection between plaintiff's cause of action for slander and KMVT's forum-related activities, such a “but for” analysis only establishes jurisdiction if it would be reasonable to do so. (See Dialysis at See, Inc. v. Superior Court, supra, 216 Cal.App.3d at p. 796.) Under Cornelison, whether jurisdiction is reasonable depends upon “the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.” (16 Cal.3d at p. 148.)

In the present case, California has virtually no interest in protecting the rights of an Idaho resident who has allegedly been slandered in Idaho by an Idaho defendant. Nor is there any compelling convenience to the parties which demands that the case be litigated in California. Lastly, plaintiff's assertion that she cannot receive a fair trial in Idaho because it is “largely populated by fervent Christians who consider astrology as satanic” is a speculative and inappropriate concern when engaging in the requisite balancing of the convenience of the parties and the interests of the state. To conclude otherwise would allow California courts to “be thrown wide open to the grossest form of forum shopping.” (Henderson v. Superior Court (1978) 77 Cal.App.3d 583, 594.)

Finally, plaintiff's complaints as to discovery rulings are also unavailing. As to the denial of her motion to compel the production of documents from two KMVT employees, Lemmon and Marcantonio, and the denial of her motion to compel Lemmon to answer one deposition question, as previously noted, plaintiff's notice of appeal did not address the trial court's finding of a lack of personal jurisdiction over Lemmon and Marcantonio. Since the order declaring no personal jurisdiction over Lemmon and Marcantonio was appealable but not appealed from, the issues determined by the order are res judicata. (In re Matthew C. (1993) 6 Cal.4th 386, 393.) Since there is no personal jurisdiction over Lemmon or Marcantonio, no further action, including rulings on motions to compel, can be taken against them by a California court.

Equally without merit is the assertion that the trial court abused its discretion in denying the motion to compel the production of certain documents from KMVT (or not continuing the motion to quash service of summons pending production of allegedly relevant documents). The record fails to establish, by offer of proof or otherwise, that compliance with the discovery complained of somehow would have resulted in plaintiff proving sufficient contacts by KMVT to establish jurisdiction over it. (See Beckman v. Thompson, supra, 4 Cal.App.4th at pp. 486-487.) Accordingly, there was no abuse of discretion as to discovery matters.

DISPOSITION

The orders under review are affirmed.

FOOTNOTES

1.  We deny KMVT's motion to dismiss the appeal. The order granting the motion to quash service of summons is appealable. (Code Civ. Proc., § 904.1, subd. (a)(3).) As to the denial of motions to compel discovery (and denial of a continuance of the motion to quash service of summons pending discovery), such orders are not separately appealable (Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 786), though such discovery issues may be raised in the context of an appeal from an order quashing service of summons. (See Beckman v. Thompson (1992) 4 Cal.App.4th 481, 486.) Moreover, although no final judgment of dismissal was ever entered, in the interests of justice and to prevent further delay, we generously deem the orders appealed from to incorporate a judgment of dismissal and thus interpret the notice of appeal as applying to such dismissal. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920-921; People ex rel. Rominger v. County of Trinity (1983) 147 Cal.App.3d 655, 658.)We note, however, that plaintiff's notice of appeal from the order quashing summons for lack of personal jurisdiction only specified KMVT and not its two employees, Lemmon and Marcantonio. The present appeal thus only covers KMVT regarding that order. (See Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625; League to Save Lake Tahoe v. Tahoe Regional Planning Agency (1980) 105 Cal.App.3d 394, 399.)

2.  The Arnolds are not parties to this appeal.

3.  The bad advice disputed by plaintiff included her purported advice that the Arnolds should get married. According to plaintiff, she never suggested they should marry, but merely advised them as to the best date if they were going to marry. Plaintiff had actually advised Roseanne not to marry Tom, or at least to wait and also to have him sign a prenuptual agreement. The Arnolds also stated they had only consulted plaintiff a few times and that the last consultation was four years ago. Plaintiff alleges the last consultation with the Arnolds was approximately three years ago, that Roseanne had paid her for 13 consultations and charts, and that she had not been fired.

BOREN, Presiding Justice.

FUKUTO and NOTT, JJ., concur.