Filed 11/4/16

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA


M. STRASNER,                                       D068865

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. 37-2014-00013884-
                                                   CU-PO-CTL)
TOUCHSTONE WIRELESS REPAIR AND
LOGISTICS, LP et al.,

        Defendants and Respondents.


        APPEAL from an order of the Superior Court of San Diego County, Eddie C.

Sturgeon, Judge. Affirmed.



        Kristensen Weisberg, John P. Kristensen and David L. Weisberg; Law Office of

Gary Simms and Gary L. Simms for Plaintiff and Appellant.

        Slater Hersey & Lieberman, Mark K. Slater, Elise K. Sara and Neil J. Cooper for

Defendants and Respondents.

        M. Strasner sued out-of-state defendants Brightpoint, Inc. (Brightpoint),

Brightpoint North America, LP (BPNA), Touchstone Wireless Repair and Logistics, LP

(Touchstone) and Touchstone Acquisition, LLC (TAL) (collectively, Defendants) for
injuries she suffered when a Touchstone employee allegedly uploaded a private

photograph of Strasner to her Facebook page from a mobile telephone she had returned to

T-Mobile. The court granted Defendants' motion to quash service of the summons and

amended complaint for lack of personal jurisdiction. Strasner appeals, contending she

made a sufficient showing of Defendants' contacts with California, both directly and

through their California parent corporation, to subject them to personal jurisdiction. We

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          Strasner entered into a wireless services contract with T-Mobile in 2010, in Santa

Monica. Strasner's account was associated with a Los Angeles telephone number. In

2012, while living in New York, Strasner terminated her contract with T-Mobile and

returned her mobile telephone to a T-Mobile store in New York. An employee at the

store claimed to have erased all of Strasner's personal information from the mobile

telephone, but the information allegedly remained. T-Mobile sent the telephone to a

facility in Texas, operated by Touchstone, for refurbishing. Strasner alleges that while

her former mobile telephone was at the facility, an employee viewed Strasner's personal

data and used the telephone to upload a sensitive photograph of Strasner to her Facebook

page and newsfeed. In May 2012, Strasner learned of the photograph's posting and

immediately removed it, but several people had already seen the photograph. As a result,

Strasner suffered severe emotional distress and embarrassment.

          Strasner moved back to California in 2013 and sued T-Mobile and various Doe

defendants in 2014, alleging (among other things) invasion of privacy, negligence, and


                                               2
violation of California Business and Professions Code section 17200 et seq. In 2015, she

amended the complaint to name Ingram Micro, Inc. (Ingram), a California corporation,

and she further amended the complaint to substitute Defendants for fictitiously named

Does. Defendants filed a motion to quash service of the summons and amended

complaint against them for lack of personal jurisdiction. Ingram did not contest personal

jurisdiction.

       In support of their motion to quash, Defendants submitted a sworn declaration

from the senior director of Brightpoint. According to the director, by 2012, Touchstone,

TAL and BPNA were all indirect wholly owned subsidiaries of Ingram, but each

remained a separate legal entity and Ingram never assumed liability for any of them. As

to each Defendant's contacts with California, the declaration established as follows: (1)

Brightpoint was not incorporated in California and did not have its principal place of

business here; it did not own property or have an office in California in 2012 or 2015, and

was not currently registered to do business in California; (2) BPNA did business as

Ingram Micro Mobility, was not incorporated in California and did not have its principal

place of business here; it did not own property or have an office in California in 2012 or

2015, and was not registered to do business in California in 2012 or 2015, it had some

California customers, but derived only a small percentage of its domestic revenue from

those customers and it did not play any role in Touchstone's refurbishing of mobile

telephones for T-Mobile; (3) TAL was not incorporated in California and did not have its

principal place of business here, it did not conduct business, own property or have an

office in California in 2012 or 2015, and was not registered to do business in California


                                             3
in 2012 or 2015; and (4) Touchstone was not incorporated in California and did not have

its principal place of business here, it did not employ persons, conduct business, own

property or have an office in California in 2012 or 2015, and was not registered to do

business in California in 2012 or 2015. At all relevant times, Touchstone had a contract

with T-Mobile, whereby it provided logistics and repair services to T-Mobile, including

refurbishing mobile telephones, at its facility in Texas. Touchstone had a single customer

in California (not T-Mobile), for whom it provided services at its Texas facility, but

Touchstone derived only a small percentage of its United States revenue from the

California customer.

       In opposition to Defendants' motion to quash, Strasner contended California could

assert general jurisdiction over Defendants through their California-based parent

corporation, Ingram, under an agency theory. She further contended Touchstone and

Brightpoint were subject to specific jurisdiction in California, as a result of the

Touchstone employee's intentional posting to Strasner's Facebook account, because the

impact of the posting was aimed at her Facebook friends, the vast majority of whom are

from California. She further emphasized Touchstone's connections to California through

Ingram, Touchstone's California expenditures, and Touchstone's and Brightpoint's

"integration" with Ingram but did not describe how those contacts related to the litigation

or established specific jurisdiction. Strasner also submitted a declaration, attesting the

vast majority of her Facebook friends reside in California and it would be apparent to

anyone who accessed her Facebook account that any posting to her account "would be

aimed primarily at those California residents."


                                              4
       In addition, Strasner had taken jurisdictional discovery and presented the

following evidence with her opposition to Defendants' motion to quash: (1) Brightpoint's

revenue was reported separately by parent Ingram in 2012, but by 2014, Ingram had

begun consolidated reporting of Brightpoint's financials, Brightpoint no longer was

publicly traded and ceased filing SEC reports, Brightpoint no longer had its own website

and its trademarks were all owned by Ingram, and some managers at Ingram oversaw

Brightpoint managers in human resources and accounting, but were not engaged in

Brightpoint's day-to-day operations; (2) BPNA packaged and distributed mobile retail

kits for wireless service providers; (3) TAL's president signed a contract with T-Mobile

on behalf of Touchstone and the same person described himself as the president of

"North America Mobility at Ingram Micro" on his LinkedIn page; and (4) Touchstone

refurbished approximately 80 percent of the T-Mobile telephones it received and sent

approximately 90 to 95 percent of the refurbished telephones to Brightpoint to be shipped

to T-Mobile or T-Mobile customers, it made payments to vendors in California in 2014,

and its former website redirects users to an Ingram-branded website. Strasner also

provided SEC filings in which Ingram referred to itself and its subsidiaries as working

together, "combining" forces and offering "end-to-end" supply chain services and "in-

house repair" operations.

       The trial court granted Defendants' motion to quash, finding Strasner had failed to

demonstrate facts to support the exercise of general or specific jurisdiction as to any of

the Defendants.




                                              5
                                      DISCUSSION

I. General Legal Principles and Standard of Review

       California courts may exercise jurisdiction over a nonresident on any basis

consistent with the federal or state Constitution. (Code Civ. Proc., § 410.10.) To

comport with federal and state due process, California may only exercise jurisdiction

when a defendant has sufficient minimum contacts with the state to satisfy " 'traditional

notions of fair play and substantial justice.' " (International Shoe Co. v. Washington

(1945) 326 U.S. 310, 316; Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th

1054, 1061 (Snowney).) Under the minimum contacts test, we examine the quality and

nature of a defendant's action to determine whether requiring him to submit to

jurisdiction in California is reasonable and fair. (Snowney, at p. 1061.)

       When a defendant challenges jurisdiction through a motion to quash, the plaintiff

bears the burden to demonstrate facts, as to each nonresident defendant, justifying the

exercise of jurisdiction by a preponderance of evidence. (In re Automobile Antitrust

Cases I & II (2005) 135 Cal.App.4th 100, 110 (Automobile Antitrust).) The plaintiff

must provide specific evidentiary facts, through affidavits and other authenticated

documents, sufficient to allow the court to independently conclude whether jurisdiction is

appropriate. (Ibid.) The plaintiff cannot rely on allegations in an unverified complaint or

vague and conclusory assertions of ultimate facts. (Ibid.)

       On review, we apply the substantial evidence standard to the trial court's factual

determinations regarding conflicting evidence. (Automobile Antitrust, supra, 135

Cal.App.4th pp. 113-114.) However, we independently review the trial court's


                                             6
conclusions regarding the legal significance of the facts. (Buchanan v. Soto (2015) 241

Cal.App.4th 1353, 1362.) When the facts are undisputed, the issue of jurisdiction is

purely a question of law. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th

434, 449 (Vons).)

II. General Jurisdiction

       A. Legal Principles

       Personal jurisdiction may be general (all purpose) or specific. The standard for

general jurisdiction is considerably more stringent than that for specific jurisdiction.

(Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th

1447, 1455.) A defendant is subject to general jurisdiction when it has substantial,

continuous and systematic contacts in the forum state, i.e., its contacts with the forum are

so wide-ranging that they take the place of a physical presence in the state. (Vons, supra,

14 Cal.4th at pp. 445-446; Daimler AG v. Bauman (2014) 571 U.S.           [134 S.Ct. 746,

754] (Daimler) [court may assert general jurisdiction over a nonresident corporation for

all purposes when the corporation's contacts with the state are so continuous and

systematic that it can be considered "at home" there].) In assessing a defendant's contacts

with the forum for purposes of general jurisdiction, we look at the contacts as they

existed from the time the alleged conduct occurred to the time of service of summons.

(DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1100-1101 (DVI).) For a

corporation, its domicile, place of incorporation, and/or principal place of business within

a state constitute the paradigm bases for establishing general jurisdiction. (Goodyear

Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 924 (Goodyear).) A


                                              7
defendant corporation's substantial sales in a state are insufficient to establish general

jurisdiction, as the general jurisdiction analysis turns on the nature of the defendant's

continuous corporate operations within a state. (Daimler, at p. 761.)

       However, even if a defendant lacks sufficient direct contacts with a forum to

establish general jurisdiction, a plaintiff may impute the minimum contacts of a

California subsidiary to a nonresident parent through theories of alter ego or agency.

(DVI, supra, 104 Cal.App.4th at p. 1093.) To invoke the alter ego doctrine, a plaintiff

must show there is such a unity of interest and ownership between the two entities that

they do not have separate personalities and it would be inequitable to treat the conduct as

attributable to only one of the entities. (Sonora Diamond Corp. v. Superior Court (2000)

83 Cal.App.4th 523, 538 (Sonora).) To impute contacts under a theory of agency, a

plaintiff must demonstrate that the parent "exercised pervasive and continuous control

over [the subsidiary's] day-to-day operations that went beyond the normal

parent-subsidiary relationship." (BBA Aviation PLC v. Superior Court (2010) 190

Cal.App.4th 421, 433 (BBA Aviation).)

       For example, in BBA Aviation, the plaintiff contended the California subsidiary's

contacts should be imputed to the out-of-state parent when, among other things: the two

corporations had common officers and directors; the parent's executive management

committee participated in workshops with the subsidiary; and the parent's name and logo

appear on the subsidiary's signage uniforms, business cards and documents. (BBA

Aviation, supra, 190 Cal.App.4th at pp. 434-435.) The court determined that the

subsidiary had its own corporate officers, human resources staff, and financial personnel


                                              8
and concluded the presence of interlocking directors and officers was considered a

normal attribute of ownership. (Id. at p. 434.) In addition, the court found branding with

the parent's logo insufficient to establish control. (Id. at p. 435.) The court therefore

refused to impute the subsidiary's forum contacts to its parent corporation under an

agency theory. (Id. at p. 433.)

       Similarly, in DVI, the Court of Appeal examined the relationship between a parent

corporation and its subsidiary and concluded that the plaintiffs' allegations of alter ego

and agency were insufficient to establish general jurisdiction over the nonresident parent.

(DVI, supra, 104 Cal.App.4th at p. 1094.) The plaintiffs presented evidence that the two

corporations used consolidated financial statements containing collective terms such as

"we" to refer to the parent and its subsidiaries; the subsidiary advertised in California

under the parent's brand name; and the parent had overlapping directors with the

subsidiary. (Id. at pp. 1095-1097.) The court determined the use of consolidated

financial statements and inclusive language fails to prove the parent and subsidiaries are a

single entity in practice; collective advertising under a common brand does not establish

general jurisdiction; and the mere existence of common directors is insufficient to

establish alter ego, as overlapping corporate officers and directors are normal attributes of

a parent-subsidiary relationship. (Ibid.) On these same facts, the court concluded that the

plaintiffs failed to prove an agency relationship, as they did not establish such a degree of

control over the resident entity so that it could be described as only a means through

which defendant acts or no more than a department of the parent. (Id. at p. 1094.)




                                              9
       B. Analysis

       Here, Strasner has failed to establish that any of the Defendants have substantial,

continuous and systematic contacts with California sufficient to establish general

jurisdiction. Strasner does not contend any defendant has sufficient direct contacts with

California to support general jurisdiction. Nor does she contend she can establish an

alter-ego relationship between Ingram and any of its subsidiaries. Instead, she argues that

general jurisdiction is appropriate over each defendant subsidiary because each is an

agent of Ingram, the California parent company. There does not appear to be any

California case in which an agency theory has been used to impute a California parent

company's forum contacts to an out-of-state subsidiary.1 In addition, such "reverse

agency" theory appears at odds with the underlying principle of imputation through


1       Some plaintiffs in other forums have attempted to rely on a similar "reverse
agency" or "single enterprise" theory to impute a parent's forum contacts to a nonresident
subsidiary, but their arguments have not been addressed on the merits. (See Goodyear,
supra, 564 U.S. at pp. 930-931 [refusing to consider appellants' argument that general
jurisdiction was appropriate due to the interrelatedness between the resident parent and
nonresident subsidiaries because appellants had failed to raise it below or in opposing the
petition for certiorari]; Ranza v. Nike (2015) 793 F.3d 1059, 1071 [refusing to consider
the reverse agency argument because the Ninth Circuit's agency test was characterized by
the Supreme Court in Daimler as too broad to comply with due process].) The agency
test formerly used by the Ninth Circuit differs from that applied by California courts, as it
allowed a finding of agency whenever the work performed by a subsidiary was so
"important" to its parent that the parent would have performed the services itself in the
subsidiary's absence. (Daimler, supra, 134 S. Ct. at p. 759.) The Supreme Court
characterized this inquiry as "stack[ing] the deck" in favor of jurisdiction. (Ibid.) In
contrast, the California test considers whether a parent exercised excessive control over
its subsidiary's forum-based operations beyond that of a normal parent-subsidiary
relationship. (BBA Aviation, supra, 190 Cal.App.4th at p. 433.) The reasoning in
Daimler therefore does not preclude imputing a resident's contacts to a nonresident under
the California version of the agency test.


                                             10
agency, which relies on a nonresident entity exerting power over the day-to-day

operations of the resident corporation (Sonora, supra, 83 Cal.App.4th at p. 542), akin to a

nonresident puppeteer pulling the strings of a California puppet. However, even if such

reverse agency theory were viable, Strasner has not established that Ingram's control over

any Defendant is so pervasive and continual to require Ingram's contacts with California

to be imputed to it under an agency theory.

       Regarding Brightpoint, Strasner demonstrated that by 2014, it had issued

consolidated revenue reports with Ingram, was no longer publicly traded, was described

in an SEC filing as a "combination" with Ingram and as working "together" with it, used

Ingram branding, discontinued its separate website and engaged in some integration of

accounting and human resources functions, in that some managers at Ingram oversee

Brightpoint managers in human resources or accounting. However, the two corporations

had separate management teams and facilities and Strasner offered no evidence that

Ingram directs Brightpoint's day-to-day operations. On this evidence, Strasner fails to

establish any agency relationship beyond that generally associated with ownership.

Normal characteristics of ownership, such as some degree of direction and oversight,

interlocking directors and officers, a close financial connection, consolidated reporting,

and shared professional services are insufficient to establish an agency relationship.

(Sonora, supra, 83 Cal.App.4th at pp. 540-541.) Likewise, evidence of co-branding or

the broad use of terms linking the corporations together in SEC filings, or other materials,

do not establish control rising to the level of an agency relationship. (BBA Aviation,

supra, 190 Cal.App.4th at pp. 434-435; DVI, supra, 104 Cal.App.4th at p. 1096; Sonora,


                                              11
at pp. 549-550.)

       The same is true for BPNA, as Strasner has failed to establish any connection

between it and Ingram other than their general corporate relationship and their use of co-

branding, which are not sufficient to establish agency. (BBA Aviation, supra, 190

Cal.App.4th at p. 432; DVI, supra, 104 Cal.App.4th at p. 1096.) Regarding TAL,

Strasner asserts TAL's president signed a contract with T-Mobile on behalf of

Touchstone and is described as the president of "North America Mobility at Ingram

Micro" on his LinkedIn page, but even if there were evidence TAL and Ingram had an

overlapping officer, the mere existence of overlapping officers and directors is

insufficient to support a finding of agency. (BBA Aviation, supra, 190 Cal.App.4th at

p. 434.) Finally, as to Touchstone, Strasner's agency argument is based primarily on its

relationship with its direct parent Brightpoint, another nonresident corporation. Because

Strasner has failed to demonstrate a relationship between Brightpoint and Ingram

indicative of agency, she likewise cannot establish that Touchstone is an agent of Ingram

by imputing Brightpoint's contacts with Ingram to Touchstone. In addition, Strasner

references Touchstone's payments to vendors in California, but provides no evidence that

those payments are made on Ingram's behalf or that there is any other connection

between the corporations with regard to such payments that would support an agency

relationship.

       Based on the foregoing, we conclude Strasner has failed to satisfy her burden to

establish that any of the Defendants have sufficient contacts with California to be subject

to its general jurisdiction.


                                            12
III. Specific Jurisdiction

       A. Legal Principles

       The specific jurisdiction analysis focuses on the " ' "relationship among the

defendant, the forum, and the litigation." ' " (Bristol-Myers Squibb Company v. Superior

Court (2016) 1 Cal.5th 783, 799 (Bristol-Myers).) To establish specific jurisdiction, a

plaintiff must demonstrate that: (1) the nonresident defendant has purposefully directed

its activities at the forum; (2) the litigation is related to, or arises out of, these forum-

related activities; and (3) exercise of jurisdiction is reasonable and complies with

" ' " 'traditional notions of fair play and substantial justice.' " ' " (Ibid.) Once a court has

concluded that the first two prongs of the test have been satisfied, the burden shifts to the

defendant to show the exercise of jurisdiction would be unreasonable under the third

prong. (Id. at p. 800; HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th

1160, 1168 (HealthMarkets).) If the plaintiff is unable to demonstrate sufficient

minimum contacts with the forum to justify jurisdiction, a court is not required to engage

in the process of weighing the defendant's inconvenience of litigating in the forum

against the plaintiff's interests in suing locally and California's interest in assuming

jurisdiction. (Sipple v. Des Moines Register & Tribune Co. (1978) 82 Cal.App.3d 143,

153 (Sipple).) The relevant time period for measuring the nature and quality of a

nonresident defendant's contacts with the forum for purposes of specific jurisdiction is at

the time the plaintiff's cause of action arose. (Cadle Co. II, Inc. v. Fiscus (2008) 163

Cal.App.4th 1232, 1239 (Cadle Co. II).)




                                               13
       In Bristol-Myers, the most recent California Supreme Court decision to address

specific jurisdiction, the court concluded that California had specific jurisdiction over an

out-of-state pharmaceutical manufacturer, Bristol-Myers Squibb (BMS), for the claims of

both resident and nonresident plaintiffs who were injured by the misleading marketing

and negligent design and manufacture of Plavix, a prescription drug. (Bristol-Myers,

supra, 1 Cal.5th at p. 813.) The court first determined BMS' conduct satisfied the

purposeful availment prong of the specific jurisdiction analysis, because it had marketed

and sold Plavix in California, employed sales representatives in California, contracted

with a California-based distributor, operated research and laboratory facilities in

California and had a lobbying office in Sacramento. (Id. at pp. 801-802.) The court

further concluded the California plaintiffs' claims concerning misleading marketing of

Plavix and injuries resulting from ingesting the drug arose out of BMS' California

contacts, satisfying the second prong of the specific jurisdiction test (relatedness of the

litigation to the defendant's forum contacts). (Id. at pp. 803-804.)

       In addition, the court held California had jurisdiction over claims of non-

California plaintiffs because their claims were substantially connected to BMS' California

conduct. (Bristol-Myers, supra, 1 Cal.5th at pp. 807-808.) The court explained a claim

need not arise directly from a defendant's forum contacts; rather, the relatedness analysis

is a sliding scale with the intensity of forum contacts inversely related to the extent of the

connection. (Id. at p. 800.) The court concluded under the sliding scale analysis BMS'

extensive California contacts were sufficiently related to the nonresidents' claims to

satisfy the relatedness requirement under the following facts: (1) the nonresident


                                              14
plaintiffs' claims arose out of the same nationwide sales and marketing campaign used in

California; (2) BMS had substantial sales of Plavix in California; and (3) some of the

nonresidents' claims were based on negligent research and design, BMS conducted drug

research and development activities in California (although not for Plavix) and had

therefore availed itself of California's laws governing research activities. (Id. at pp. 801-

802, 805-806.)

       In Bristol-Myers, BMS' forum contacts unquestionably satisfied the purposeful

availment requirement (which BMS did not contest), as it had extensive business contacts

in California, including substantial pharmaceutical sales, research facilities and hundreds

of employees. (Bristol-Myers, supra, 1 Cal.5th at pp. 801-802.) Generally, the

purposeful availment requirement is " 'satisfied when the defendant purposefully and

voluntarily directs his activities toward the forum so that he should expect, by virtue of

the benefit he receives, to be subject to the court's jurisdiction based on' his contacts with

the forum." (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich).)

However, in libel, defamation and some other intentional tort cases, courts have applied

an "effects test" to assess the purposeful availment requirement.2 (Id. at pp. 269-270.)

       In Calder v. Jones (1984) 465 U.S. 783 (Calder), the United States Supreme Court

established the effects test in connection with a California libel lawsuit. A California

actress sued a reporter and editor employed by National Enquirer at its Florida



2      The "effects test" is also described as the "purposeful direction" test by federal
courts. (Gilmore Bank v. AsiaTrust New Zealand Limited (2014) 223 Cal.App.4th 1558,
1569 (Gilmore).)

                                              15
headquarters, based on an article published in its newspaper, which had a California

circulation of approximately 600,000. The court concluded California's jurisdiction over

the defendants complied with due process because although defendants' activities focused

on the plaintiff, defendants also had significant contacts with the forum, as they had

communicated with California sources to investigate the article, the article was about

plaintiff's activities in California, and the article was widely circulated in the state,

causing injury to plaintiff's reputation there. (Id. at pp. 788-789.) The court

characterized jurisdiction over defendants as based on the "effects" of their Florida

conduct in the state, observing their intentional actions were "expressly aimed at

California" because they wrote the article knowing it would harm the plaintiff and the

greatest impact of the harm would occur in the plaintiff's home state, in which National

Enquirer had the largest circulation. (Id. at pp. 789-790.)

       The effects test was also applied in Keeton v. Hustler Magazine, Inc. (1984) 465

U.S. 770, 780-781 (Keeton). In Keeton, a New York resident brought a libel action

against a California-based publication in New Hampshire state court (the only state court

in which the statute of limitations had not run).3 (Id. at p. 773.) The court concluded that

the California defendant, who sold 10,000 to 15,000 copies of its publication in New

Hampshire monthly, could reasonably be expected to be subject to New Hampshire's

jurisdiction in light of its continuous and deliberate exploitation of the New Hampshire



3      The Supreme Court noted that the respective duration of the statutes of limitations
in nonforum jurisdictions has nothing to do with the determination of contacts among
defendant, the forum state and the litigation. (Keeton, supra, 465 U.S. at p. 779.)

                                               16
market. (Id. at pp. 772, 781; cf. Evangelize China Fellowship, Inc. v. Evangelize China

Fellowship Hong Kong (1983) 146 Cal.App.3d 440, 449 [no specific jurisdiction when

the defendant publisher's only connection to California was its mailing of 600 copies per

month of a magazine containing an allegedly libelous editorial to California readers and

sending receipts to its California financial contributors and California was not the topic of

the editorial].)

       Under California law, to establish specific jurisdiction through the effects test a

plaintiff must show the defendant committed an intentional act, expressly aimed at or

targeting the forum state, with the knowledge that his act would cause harm in the state.

(Pavlovich, supra, 29 Cal.4th at pp. 271-272; see Gilmore, supra, 223 Cal.App.4th at

p. 1570 ["the effects test requires express aiming at the forum (not necessarily at the

plaintiff)"].) In Pavlovich, the defendant, a Texas resident, had posted source code on a

website that could be used to decrypt the copyright function of DVD's while he resided in

Indiana. (Pavlovich, at p. 266.) The plaintiff, a California organization responsible for

licensing the encryption technology, filed a complaint alleging the defendant's

misappropriation of trade secrets and contending defendant's posting harmed a wide array

of California industries. (Id. at p. 267.) Defendant asserted that he did not know plaintiff

was the licensor of the technology or that it was located in California. (Id. at p. 275.)

The court analogized the defendant's posting on a passive website as akin to placing a

product in the stream of commerce, and found that such posting was insufficient to

establish purposeful availment when the defendant did not know his conduct would cause

harm to the plaintiff in California. (Id. at pp. 274-275.) The court further concluded that


                                             17
even if the defendant should have known that his conduct would impact California

corporations, the mere foreseeability of harm in California did not fulfill the effects test.

(Id. at pp. 276-278.)

       Since Pavlovich, a number of courts have conducted jurisdictional analyses in the

context of defendants' acts conducted over the internet. For example, in Burdick v.

Superior Court (2015) 233 Cal.App.4th 8 (Burdick), the Court of Appeal considered

whether a nonresident defendant's posting of defamatory statements about a California

resident on the defendant's personal Facebook page constituted sufficient minimum

contacts to subject the defendant to jurisdiction in California and concluded it did not.

(Id. at p. 25.) The Burdick defendant made the post in Illinois, the post did not have a

California focus and the plaintiff provided no evidence that the defendant had a

significant number of Facebook friends who lived in California or that the page contained

advertisements targeting Californians. (Ibid.) In addition, the court noted that the

defendant's Facebook page was characterized as publicly available, which made it less

likely that the defendant had intentionally targeted California. (Ibid.) Under these

circumstances, the court concluded California lacked personal jurisdiction over the

defendant because there was no evidence that the defendant expressly aimed or

intentionally targeted his conduct at California, rather than at the plaintiff. (Id. at pp. 25-

26.)

       More recently, the Court of Appeal held that California did not have personal

jurisdiction over a nonresident defendant who instituted a campaign to harass and defame

a California corporation through threats made on Twitter and in comments posted online.


                                              18
(ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 219.) The court noted that the

threats were published to anyone who chose to access them, and were not directed solely

to the plaintiff. Moreover, although the plaintiff alleged that the defendant knew the

plaintiff's CEO lived in San José and published his California address online, there was

no admissible evidence supporting those assertions. (Id. at p. 218.) Under those facts,

the court determined the plaintiff had failed to demonstrate that the defendant aimed his

statements at a California audience, that the social media platforms defendant used were

targeted at California, or that a significant number of California residents saw the posts

and concluded there was not competent evidence of minimum contacts with California

sufficient to allow it to exercise jurisdiction over the defendant. (Id. at p. 219; see also

McGibney v. Retzlaff (N.D.Cal., June 18, 2015, No. 14-CV-01059-BLF) 2015 WL

3807671, at *5 [a plaintiff's conclusory declaration stating the nonresident defendant

knew recipients of his e-mail messages were California residents was insufficient to

establish targeted forum contacts when such declaration lacked foundation as to the

defendant's intent and knowledge]; cf. Mavrix Photo, Inc. v. Brand Technologies, Inc.

(9th Cir. 2011) 647 F.3d 1218, 1229-1230 [a nonresident defendant's conduct was

directed at California when the defendant posted copyrighted pictures of California

celebrities on its celebrity gossip website, which also contained third-party advertising for

jobs, hotels and vacations in California, establishing the defendant's exploitation of the

California market for its own commercial gain].)




                                              19
       B. Analysis

       In her opening brief, Strasner contends Defendants are subject to specific personal

jurisdiction in California because a Touchstone employee in Texas intentionally uploaded

her photograph on Facebook. Strasner does not identify, either below or on appeal, the

nature of any contacts by BPNA, TAL or Bridgepoint which could form the basis for

establishing their purposeful availment of the benefits of the California forum, nor does

she provide any reasoned argument or citation to authority to support a finding of

purposeful availment with respect to such Defendants. "When an appellant fails to raise a

point, or asserts it but fails to support it with reasoned argument and citations to

authority, we treat the point as waived." (Badie v. Bank of America (1998) 67

Cal.App.4th 779, 784-785.)

       With respect to Touchstone, Strasner contends it is undisputed that her photograph

was not uploaded accidently or that the majority of her Facebook friends reside in

California. She further contends anyone posting her "private information to her

Facebook page would easily be made aware that most of her family and friends were in

California." Strasner analogizes the posting of the photograph to her Facebook account,

causing it to be sent to her Facebook friends via Facebook's "newsfeed" feature, to the

process of mailing copies of the private photograph to each of her Facebook contacts, and

claims that the majority of such mail would be sent to California. She further argues the

majority of her injury occurred in California, where persons who were most important to

her were located. Strasner characterizes the employee's action as targeting not only her,

but also "her many friends and family in California."


                                              20
       As evidentiary support for her contentions, Strasner relies on her declaration,

stating the vast majority of her Facebook friends were from California and such fact

would be "clearly realize[d]" by anyone who accessed her account. She further relies on

the following facts: the uploaded photo indicated it was "posted from mobile"; the

number associated with her returned mobile telephone had a Los Angeles area code; and

the telephone also contained private financial information, passwords and medical

information. Strasner contends such evidence "gives rise to the reasonable [inference]

that Touchstone's employee was able to determine that Strasner had substantial California

connections." However, this evidence is insufficient to establish that a Touchstone

employee expressly aimed his or her conduct at, or targeted, California with the

knowledge that such act would cause harm in the state. (Pavlovich, supra, 29 Cal.4th at

pp. 271-272.)

       Strasner provides no factual evidence to support her contention that the act of

uploading her photograph to her Facebook account resulted in a targeted transmission of

the photograph to her Facebook friends.4 (Automobile Antitrust, supra, 135 Cal.App.4th

at p. 110.) Instead, she relies on descriptions of the Facebook "newsfeed" process

contained in her briefing, which is not evidence. In addition, Strasner provides no

foundation for the conclusory assertion in her declaration that anyone accessing her


4      In addition, Strasner described the posting of her picture as "publicly posting" her
private photograph and making it available "readily, to anyone with access to her
Facebook newsfeed, including but not limited to, her friends, clients . . . and the public."
Her characterization of her Facebook page as publicly available makes it less likely that
the employee defendant intentionally targeted California. (See Burdick, supra, 233
Cal.App.4th at p. 25.)

                                             21
Facebook page would "clearly realize" the majority of her Facebook friends were from

California. She also fails to establish how her unspecified financial and medical

information and passwords would have informed anyone viewing them that the bulk of

her Facebook contacts reside in California. Presumably, as Strasner was living in New

York when the posting occurred, to the extent her data showed a current address, it would

not be in California. Furthermore, Strasner offers no evidence that the photograph itself

provided any indication of her ties to California. Finally, even if a Texas employee may

have seen the Los Angeles area code associated with Strasner's discarded mobile

telephone, such possibility does not compel an inference that the employee knew the area

code was associated with California or that the employee therefore must have known that

a substantial number of Strasner's Facebook friends lived in California.

       Strasner asserts "it must be said that [Defendants] purposefully directed their

activities at California," because they were unable to cite a single case in which any court

granted a motion to quash service on a defendant accused of posting information on a

plaintiff's Facebook page or personal website, but Strasner likewise was unable to find

any case in which a court denied a motion to quash under similar circumstances. Nor has

Strasner identified any authority in which a court found specific jurisdiction without

sufficient evidentiary support establishing that the defendant's conduct was targeted at the

forum state with knowledge that the act would cause harm in the state. Strasner likens

her case to Calder and Keeton, but in both of those cases it was undisputed that the

defendants knew a substantial number of the publications at issue were sold in the forum,

thus the forum was expressly targeted. (Calder, supra, 465 U.S. at pp. 788-789; Keeton,


                                             22
supra, 465 U.S. at p. 772.) Here, Strasner did not present sufficient evidence that the

Facebook posting specifically targeted California. Strasner has therefore failed to

establish that Touchstone purposefully availed itself of the California forum through the

posting of Strasner's photograph.

       At oral argument, Strasner argued for the first time that Touchstone had other

business contacts in California through which it could demonstrate specific jurisdiction

under Bristol-Myers. As noted above, Touchstone made payments to vendors in

California and had a single California customer (who was not T-Mobile). These types of

deliberate business contacts would appear to satisfy the purposeful availment prong of the

specific jurisdiction test. (Pavlovich, supra, 29 Cal.4th at p. 269.) However, there is no

evidence in the record that such contacts existed at the time Strasner's photograph was

posted, which is the relevant time for evaluating Touchstone's contacts with California in

order to establish specific jurisdiction. (See Cadle Co. II, supra, 163 Cal.App.4th at

p. 1239.)

       Moreover, even if Touchstone engaged in these contacts at the relevant time and

thereby purposefully availed itself of the California forum, Strasner has provided no

evidence to satisfy the second prong of the specific jurisdiction test: that there was a

substantial connection between her alleged injury and Touchstone's California contacts.

(Bristol-Myers, supra, 1 Cal.5th at p. 805.) The record does not indicate what the

California vendors were paid to do or how the vendors' California activities were

connected to Touchstone's Texas refurbishment facility, where the posting of Strasner's

photograph allegedly occurred. In addition, although Touchstone admittedly provided


                                             23
refurbishment services for one California customer at its Texas facility (as it did for T-

Mobile), there is nothing in the record to suggest that the alleged mishandling of

Strasner's data was part of any common pattern or practice or impacted any of the mobile

telephones handled for the California customer. Therefore, unlike the circumstances in

Bristol-Myers, in which BMS conducted a nationwide pattern of marketing, promotion

and distribution activities which injured both California and nonresident plaintiffs in their

home states, there is no demonstrated connection between Touchstone's vendor activity

or sales in California and Strasner's claims. (Id. at p. 804.)

       Furthermore, Touchstone's California contacts (payments to vendors and sale of

services to a California customer), do not appear as extensive as those in Bristol-Myers,

as BMS had research facilities, lobbyists and employees in California in addition to its

California distributor, salesforce and substantial sales of the product at issue. (Bristol-

Myers, supra, 1 Cal.5th at pp. 801-802.) Accordingly, under the sliding scale analysis,

Touchstone's California contacts would need to be more closely connected to Strasner's

litigation than BMS' contacts were to the Bristol-Myers litigation and Strasner has not

identified facts to show any connection between Touchstone's business contacts in

California and her alleged injury. (Id. at p. 800, 806.) Strasner has not established

Touchstone purposefully availed itself of forum benefits through contacts with California

that were substantially related to her alleged injury and therefore has not demonstrated

the minimum contacts required for specific jurisdiction.

       Strasner also attempts to rely on various factors of the reasonableness analysis and

other "plus factors" described in a federal district court case to overcome her failure to


                                              24
establish minimum contacts. (See Vons, supra, 14 Cal.4th at pp. 447-448; Crane v. Carr

(D.C. Cir. 1987) 814 F.2d 758, 762-763.) However, Strasner presents no authority

requiring the court to consider such factors when she has failed to establish the threshold

minimum-contact requirement. (See Sipple, supra, 82 Cal.App.3d at p. 153.)

Furthermore, Strasner fails to establish how any of the "factors" she presents can

somehow compensate for the lack of minimum contacts.

       We conclude Strasner has failed to establish any Defendant's minimum contacts

with California sufficient to allow for the exercise of specific jurisdiction.

                                       DISPOSITION

       The trial court's order granting Defendants' motion to quash service of process for

lack of jurisdiction is affirmed. Defendants are entitled to costs on appeal.




                                                                         McCONNELL, P. J.

WE CONCUR:



                        BENKE, J.



                    O'ROURKE, J.




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