.......................... ...................................Chapter 2: Jurisdiction, Venue, Conflicts..........................................................

A. Subject Matter................... Jurisdicti A. Subject Matter Jurisdiction
1. Federal and State Court Comparison
p. 38, second full paragraph, penultimate sentence: Exclusive subject matter jurisdiction may be lodged in a California administrative tribunal for certain causes of action. See, e.g., Blanks v. Seyfarth Shaw, 171 Cal.App.4th 336, 89 Cal.Rptr.3d 710 (2009) (exclusive subject matter jurisdiction rests with California Labor Commissioner for "controversies colorably arising under" the state Talent Agencies Act).

p. 38, end of second full paragraph: If two superior courts possess concurrent jurisdiction over the subject matter and the parties in an action, the rule of "exclusive concurrent jurisdiction" dictates that the first court to actually assume jurisdiction will have "exclusive and continuing jurisdiction" until the litigation is resolved. "The rule of exclusive concurrent jurisdiction is not 'jurisdictional' in the sense that failure to comply renders subsequent proceedings void." The rule is intended to "avoid conflict of jurisdiction, confusion and delay in the administration of justice." Consumer Advocacy Group, Inc. v. ExxonMobil Corp., 186 Cal.App.4th 675, 682-83, 86 Cal.Rptr.3d 39, 45-46 (2008).

2. Jurisdictional Classifications
p. 46, new Note 10: If a plaintiff files her action as an unlimited civil case, but she recovers a judgment within the jurisdiction of a limited civil case, the Superior Court may, in its discretion, deny an award of costs (including attorney's fees) to the plaintiff. CCP § 1033(a). This consequence is intended to encourage plaintiffs to classify their actions appropriately and not exaggerate the value of their claims. However, section 1033 does not apply to statutory discrimination or civil rights claims brought under the Fair Employment and Housing Act (FEHA). A prevailing FEHA plaintiff in an unlimited civil case is entitled to recover attorney's fees as a matter of right, even though the recovery was within the jurisdictional range of a limited civil case. See Chavez v. City of Los Angeles, 160 Cal.App.4th 410, 72 Cal.Rptr.3d 783, review granted and opinion superseded, 76 Cal.Rptr.3d 681, 183 P.3d 383 (2008). (See also Chapter 7, p. 821, new Note 6.)

..............................................................B. Jurisdiction Over Persons
1. Bases of Personal Jurisdiction
p. 48, second full paragraph, following first sentence: A nonresident defendant may consent to the exercise of personal jurisdiction in California. For example, a party to a settlement agreement approved by a California court (which retained jurisdiction to enforce the agreement) is deemed to have consented to jurisdiction in a subsequent suit by the settlement administrator for nonpayment of fees. The defendant accepted the benefits of a California settlement agreement and agreed to pay the fees of a California settlement administrator. Szynalski v. Superior Court, 172 Cal.App.4th 1, 90 Cal.Rptr.3d 683 (2009).

p. 57, Note 1, new second and third paragraphs: The mere acceptance of premium payments from a California resident by a nonresident insurance company is insufficient to establish personal jurisdiction over the insurer when it did not solicit insurance customers or otherwise seek to establish a presence in California. The "unilateral activity" of the California insured in obtaining health services in the state and submitting claims for those services does not create purposeful availment of California benefits by the insurer. * Elkman v. National States Insurance Co., 173 Cal.App.4th 1305, 93 Cal.Rptr.3d 768 (2009).(distinguishing McGee v. International Life Insurance Co. on ground that solicitation of insurance in California in McGee demonstrated purposeful availment).
.....The Court of Appeal found purposeful availment (and ultimately specific jurisdiction) where a California plaintiff sued an Italian company for nondelivery of $400,000 of olive oil. Although the case involved a one-time sales transaction, the Court found the exercise of jurisdiction to be proper because there had been several negotiation discussions with the California plaintiff, the contract required delivery of the oil to California, the defendant was required to pay shipping and insurance costs, and the size of the transaction was "substantial." Luberski v. Oleficio F.LLI Amato S.R.L., 171 Cal.App.4th 409, 89 Cal.Rptr.3d 774 (2009). (Bonus question: What procedural vehicle might the Italian defendant pursue in an effort to have the case adjudicated in Italy?)
* .....The Court of Appeal affirmed the trial court's refusal to exercise general or specific jurisdiction over an Irish archdiocese sued by a plaintiff claiming molestation by a priest in California. The archdiocese's contacts with California were limited to accepting tuition money for the priest's training in a California seminary. In contrast to an earlier case upholding jurisdiction over a Milwaukee archdiocese, substantial evidence showed that the Irish archdiocese did not know of the priest's propensity to molest children. Additionally, the Court urged increased caution when jurisdiction is sought over a defendant from a sovereign nation. Doe v. The Roman Catholic Archbishop of Cashel & Emly, 177 Cal.App.4th 209, 99 Cal.Rptr.3d 158 (2009).

p. 57, Note 2, new second paragraph: Recall the Edible Widgets Hypothetical in Chapter 1, Section E. After Paul completely recovered from his Edible Widgets mishap, he resumed his law studies. Paul is a stellar student, and his performance came to the attention of the University of Virginia law school. The university sent one of its most renowned professors to California to convince Paul to transfer. Over the course of two visits, the professor offered Paul a full scholarship and a spot on the law review. Paul executed the enrollment agreement in California and moved to Virginia. At Virginia, Paul lived with a roommate, Biff. Paul and Biff went out drinking one night, and they engaged in a drunken brawl. Paul fell from a train trestle and sustained severe brain injuries. Paul has sued the university for his injuries in a California Superior Court. The university has moved to quash service of summons on the ground that the court does not have specific jurisdiction over it. Under the three-pronged specific jurisdiction analysis in Snowney, how is the court likely to rule? Roman v. Liberty University, Inc., 162 Cal.App.4th 670, 75 Cal.Rptr.3d 828 (2008).

p. 57, Note 4, following Pebble Beach cite: When a "lone transaction for the sale of one item" from an out-of-state seller to a California buyer is conducted via the Internet, the Ninth Circuit applies a traditional minimum contacts analysis instead of applying the "sliding scale" Internet interactivity test from Zippo to establish jurisdiction. Boschetto v. Hansing, 539 F.3d 1011 (9th Cir.2008).

p. 58, Note 5, new second paragraph: Assume that the court grants World Wide Widgets' motion to quash. World Wide then files a motion in the trial court for an award of attorney's fees associated with bringing the motion to quash. Dan contends that because the trial court granted World Wide's motion to quash, it no longer has personal jurisdiction over World Wide for the attorney's fees motion. Is the court likely to entertain the attorney's fees motion? See Shisler v. Sanfer Sports Cars, Inc., 167 Cal.App.4th 1, 83 Cal.Rptr.3d 771 (2008).

p. 58, Note 8, new second paragraph: The Court of Appeal upheld the exercise of specific jurisdiction over an Irish bank and its subsidiaries. Meetings between managers of the subsidiaries and potential investors in California were sufficient to demonstrate purposeful availment by not only the subsidiaries, but by the parent bank as well, which had directed the subsidiary managers to engage in activities in the forum state. Anglo Irish Bank Corp. v. Superior Court, 165 Cal.App.4th 969, 81 Cal.Rptr.3d 535 (2008). * But see Healthmarkets, Inc. v. Superior Court, 171 Cal.App.4th 1160, 1169, 90 Cal.Rptr.3d 527, 534 (2009) (no specific jurisdiction over parent unless it "deliberately direct[ed] the subsidiary's activities in, or [had] a substantial connection with" California).

p. 58, Note 9, new second paragraph: Another form of in rem jurisdiction occurs in the context of "validation" actions to determine the validity of a public agency action (ordinance, resolution, etc.). In traditional in rem actions, the court seizes the "thing" (typically property) and adjudicates claims against it. In a validation action, the "thing" is the action taken by the public agency. "The only way for the court to acquire jurisdiction over the matter is to ensure that notice is given to all interested persons so that the resulting judgment can be conclusive as against them. Notice is provided by publishing the summons in a particular form, within a specified timeframe, and specifying a date for response. Jurisdiction is not 'complete' until 'after the date specified in the summons." Community Youth Athletic Center v. City of National City, 170 Cal.App.4th 416, 428, 87 Cal.Rptr.3d 903, 912 (2009).

p. 59, new Note 10: A judgment that has been properly renewed will not be vacated on the ground that the defendant did not have minimum contacts with California at the time of the renewal. As long as a trial court had personal jurisdiction over the defendant at the time of service of summons, the court's jurisdiction continues throughout all subsequent proceedings, including renewal of the judgment. Goldman v. Simpson, 160 Cal.App.4th 255, 72 Cal.Rptr.3d 729 (2008); see also Cadle Company II, Inc. v. Fiscus, 163 Cal.App.4th 1232, 78 Cal.Rptr.3d 238 (2008) (if a defendant had minimum contacts with California in an original action, those contacts are sufficient for the exercise of personal jurisdiction in a subsequent independent action to revive the original judgment).

2. Service of Process
* p. 63, Note 8, immediately following third sentence: See also Hearn v. Howard, 177 Cal.App.4th 1193, 99 Cal.Rptr.3d 642 (2009) (substituted service on clerk in commercial post office box store is proper if box is defendant's "usual business address," as long as all other requirements of CCP § 415.20(b) are followed).

p. 69, Note 1, new second paragraph: Service of process on an incarcerated defendant may be accomplished via service on the sheriff or jailer. Cal. Penal Code section 4013. The jailer is considered an authorized agent under CCP sections 416.90 and 413.10. Sakaguchi v. Sakaguchi, 173 Cal.App.4th 852, 92 Cal.Rptr.3d 717 (2009).

p. 71, Note 6, following Rio Properties cite: But see Rice Corp. v. Grain Board of Iraq, 582 F.Supp.2d 1309 (E.D.Cal.2008) (e-mail service of process not permitted under Iraqi law and thus invalid under Foreign Sovereign Immunities Act).

p. 71, Note 7, new second paragraph: The newspaper in which the summons is published must be one of "general circulation." Cal. Gov't Code §§ 6000, 6060. To qualify, the newspaper must have a "bona fide subscription list of paying subscribers." A newspaper that is free, but in which a small percentage of its recipients contribute money to offset the cost of delivering it, does not qualify as a newspaper of general circulation because the recipients are not considered paying subscribers. In re Eureka Reporter, 165 Cal.App.4th 891, 81 Cal.Rptr.3d 497 (2008).

p. 72, Note 8, after parenthetical following In re Alyssa F. cite: In re Jorge G., 164 Cal.App.4th 125, 78 Cal.Rptr.3d 552 (2008) (service on foreign residents that does not conform to Hague Service Convention procedures renders all subsequent proceedings void, even if actual notice was received). * Despite the language in CCP section 413.10(c) that the rules governing service of process on a foreign party are "subject to" the Hague Service Convention, compliance with the Convention is not always required. Service made on a California subsidiary constitutes valid service on a foreign parent company. CCP section 416.10(a) permits service on a foreign corporation's "general manager in this state." The relationship between the subsidiary "general manager" and the parent must involve "ample regular contact" so that it is "reasonably certain" that the subsidiary would notify the parent of the service. Yamaha Motor Co., Ltd. v. Superior Court, * 174 Cal.App.4th 264, 94 Cal.Rptr.3d 494 (2009).

p. 72, new Note 9: When a defendant whose true name has been ascertained is substituted for a defendant sued fictitiously as a "Doe," CCP section 474 mandates substantial compliance with two requirements for successful service of process on the newly substituted defendant: 1) the summons must show on its face that the newly named defendant is being sued as a particular "Doe"; and 2) the proof of service must state the fictitious name under which the defendant is being served and the fact that "notice of identity was given by endorsement upon" the summons being served. A plaintiff who failed to substantially comply with both "explicit statutory prerequisite[s]" may not obtain a default and default judgment against the defendant. Pelayo v. J.J. Lee Management Co., Inc., * 174 Cal.App.4th 484, 500, 94 Cal.Rptr.3d 502, 515 (2009).

...................................................................................................C. Venue
* 1. Proper County
p. 85, Note 2, immediately following Gallin citation: See also Fontaine v. Superior Court, 175 Cal.App.4th 830, 96 Cal.Rptr.3d 607 (2009) (general rule of venue in transitory actions yields only where a statutory exception exists, such as that in CCP § 395(b), governing actions arising from certain consumer obligations).

2. Forum Non Conveniens
p. 98, end of Note 1: In some cases, a dismissal may be appropriate. If a California plaintiff whose California action has been stayed failed to exercise reasonable diligence in prosecuting the action in the foreign forum, the Superior Court may order a discretionary dismissal based on its evaluation of the factors set out in CRC 3.1342(e). "California's interest in assuring an adequate forum for a California plaintiff is not absolute, and can be overcome when the plaintiff is unreasonably dilatory in prosecuting the action in the convenient forum." Van Keulen v. Cathay Pacific Airways, Inc., 162 Cal.App.4th 122, 130, 75 Cal.Rptr.3d 471, 477 (2008). (See Chapter 5(D)(2) for information on diligent prosecution.)

p. 99, end of Note 5: A federal district court in California applies federal law to determine the enforceability of a forum selection clause designating the courts of another state. If enforcement of the clause would contravene a strong public policy of California-whether manifested in a statute or judicial decision-the clause is unenforceable. Thus, California plaintiffs bringing California consumer causes of action in a class action cannot be made to waive their rights to litigate those claims in California, despite their agreement to a forum selection clause which would require litigation in a state in whose courts a class action based on those claims would not be available. * Doe 1 v. AOL, LLC, 552 F.3d 1077 (9th Cir.2009).

p. 103, Note 1, new second paragraph: In determining whether "no remedy at all" exists, the trial court considers whether the alternate forum lacks an independent judiciary. General allegations of corruption or lack of due process are insufficient. The Court of Appeal found China (specifically Shanghai) to be a suitable alternate forum based on expert evidence of adequate procedures and remedies currently in place in the Chinese courts. Guimei v. General Electric Co., 172 Cal.App.4th 689, 91 Cal.Rptr.3d 178 (2009).

* p. 104, Note 4, new second and third paragraphs: Two federal opinions illuminate the role that the plaintiff's choice of forum plays in determining whether to dismiss the case on FNC grounds. In Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656 (9th Cir. 2009), the Ninth Circuit ruled that FNC applies to actions filed under the Death on the High Seas Act, and it dismissed the action in favor of litigation in Mexico despite the fact that the American plaintiffs filed suit in an American court. The dissent questioned whether sufficient deference had been shown to the plaintiffs' choice of forum and whether Mexican law provided any "practical" remedy.
In cases where none of the plaintiffs resides in the U.S. forum, the district court affords very little deference to the plaintiffs' choice of forum. Even less deference is called for when the plaintiff's choice of a U.S. forum is motivated by forum-shopping. "[E]leventh hour efforts to strengthen connections with the United States allow the district court to reduce the deference due a plaintiff's choice of forum." Vivendi SA v. T-Mobile USA Inc., ___F.3d___ (9th Cir. 2009) [2009 WL 3525855].

. .........................................................................................D. Conflict of Laws
1. Introduction
p. 105, end of bottom paragraph: See also Symeon C. Symeonides, Choice of Law in the American Courts in 2008: Twenty-Second Annual Survey, 57 Am.J.Comp.L. 269 (2009).

2. Tort Actions
p. 117, Note 1, new second paragraph: If the existence of a true conflict is difficult to discern, the trial court may assume, arguendo, that each state has a legitimate interest in the application of its law so that it may proceed to the third prong of the governmental interest test: the comparative impairment analysis. In McCann v. Foster Wheeler, 160 Cal.App.4th 689, 73 Cal.Rptr.3d 96, review granted and opinion superseded, 77 Cal.Rptr.3d 163, 183 P.3d 1146 (2008), the Court of Appeal expressed doubt about whether a true conflict existed because it was not convinced that Oklahoma had an interest in the application of its law. However, the court progressed to the comparative impairment analysis and determined that California's interest in providing a remedy to a state resident for a cause of action that accrued in California would be more significantly impaired than would Oklahoma's supposed interest if its statute of repose were not applied.

p. 117, new Note 6: In a California shareholder derivative action against a company incorporated in the British Virgin Islands, the Court of Appeal declined to use the governmental interest test in favor of applying a conflict of laws principle known as the "internal affairs doctrine." Under this doctrine (which is codifed at Cal. Corp. Code § 2116 and is indirectly addressed in Restatement (2d) of Conflict of Laws § 302), the law of the state of incorporation applies to an action involving the internal affairs of a foreign corporation. Thus, the Court held that a British Virgin Island law, which required approval of the high court of that jurisdiction before a shareholder may bring a derivative action, applied in the California action under the internal affairs doctrine. The Court labeled this "leave to sue" requirement "substantive" rather than "procedural" because it involved standing to bring an action. Vaughn v. LJ International, Inc., * 174 Cal.App.4th 213, 94 Cal.Rptr.3d 166 (2009)..

3. Contract Actions
p. 123, Note 4, new second paragraph: The Court of Appeal, in a case involving a choice of law clause designating Nevada law in a consumer loan contract, focused primarily on whether Nevada law was contrary to a fundamental policy of California as embodied in the state's Finance Lenders Law. A compelling factor in determining the fundamental nature of California's policy is whether the parties are precluded from waiving or circumventing the California law by an agreement. Brack v. Omni Loan Co., 164 Cal.App.4th 1312, 80 Cal.Rptr.3d 275 (2008).
.....* See also Resurgence Financial, LLC v. Chambers, 173 Cal.App.4th Supp. 1, 92 Cal.Rptr.3d 844 (2009) (applying Nedlloyd test to choice of law clause designating Delaware statute of limitations).

p. 124, Note 6, immediately following Fields cite: Hoffman v. Citibank (South Dakota), N.A., 546 F.3d 1078 (9th Cir.2008) (district court sitting in diversity in credit card class action must apply California conflict of laws analysis under Nedlloyd and Restatement).