Bader v. Avon Prods., Inc.

55 Cal.App.5th 186

269 Cal.Rptr.3d 318

Susan Jean BADER, Plaintiff and Appellant,

v.AVON PRODUCTS, INC., Defendant and Respondent.

A157401

A158611

Court of Appeal, First District, Division 4, California.

Filed September 29, 2020

Counsel for Appellant: Kazan, McClain, Satterley & Greenwood; Joseph D. Satterley, Denyse F. Clancy, and Michael T. Stewart, Oakland

Counsel for Respondent: Horvitz & Levy, LLP; Curt Cutting, Burbank, Yen-Shyang Tseng : Hawkins Parnell & Young, LLP; Claire C. Weglarz, Macy M. Chan, Los Angeles, and Elizabeth N. Branham, San Francisco

BROWN, J.

In this strict products liability, negligence, and fraud case, plaintiff Susan Jean Bader (Bader), the representative of the estate of Patricia Schmitz (Schmitz), sues defendant Avon Products, Inc. (Avon) alleging that Schmitz used Avon's perfumed talc powder products for around 20 years, and that these products contained asbestos and caused Schmitz's mesothelioma.¹ The trial court granted Avon's motion to quash service of summons ( Code Civ. Proc., § 418.10 ),² concluding that it lacked specific personal jurisdiction over Avon because Bader failed to establish that her claims were related to or arose from Avon's forum contacts (the "relatedness prong"). Specifically, the trial court found that Bader failed to establish that Avon sold, and Schmitz used, in California talc powder products that contained asbestos as opposed to talc powder products without asbestos. The trial court also found that Bader failed to show that Avon injected the particular products at issue into California in a manner that related to Schmitz's acquisition and usage of those products.

Bader appeals, contending that (1) she satisfied her burden on the relatedness prong with evidence of Avon's sale of the allegedly defective talc powder products to Schmitz in California, (2) her suit arises out of this contact, and (3) she did not have to additionally prove that these products were in fact defective (contained asbestos) at the jurisdictional phase. Alternatively, Bader argues that she established that Avon's perfumed talc powder contained asbestos and the trial court erred by narrowly restricting the scope of further jurisdictional discovery. We conclude that Bader satisfied her burden on the relatedness prong, and, because Avon does not contest purposeful availment or argue that the exercise of personal jurisdiction over it would be unreasonable, we reverse the trial court's order granting Avon's motion to quash. We also reverse the trial court's order awarding prevailing party costs to Avon.³

FACTUAL AND PROCEDURAL BACKGROUND

Schmitz lived in Alameda, California all her life. She became a teacher in 1979 when she began working full time at a school in Oakland where she taught until 2000; thereafter, she taught in Alameda.

Schmitz used Avon perfumed talc powder products starting in 1980 and continuing through sometime in early 2000. At her first full-time teaching job in Oakland, there were many "Avon ladies" in the parent community who left catalogs in the faculty room and sometimes in the front office. That was how Schmitz was introduced to and began using Avon perfumed talc powders. Thereafter, she placed orders for these products about twice a year, and she used a number of different scents, although she did not remember specifically when she bought and used each scent.

Bader sued numerous defendants for strict products liability (design defect and failure to warn), negligence, and fraud. She alleged that Schmitz used defendants’ cosmetic talc products in Alameda County for over two decades. She further alleged that defendants placed defective products into the stream of commerce, and that their talc powders were defective because they caused hazardous asbestos to become airborne during use. As a result of Schmitz's exposure to defendants’ cosmetic talc, Bader alleged that Schmitz developed mesothelioma.

Avon moved to quash service of summons, claiming that Bader had the burden to produce evidence showing that the Avon talc powder products she used contained asbestos in order to establish the relatedness prong under Bristol-Myers Squibb Co. v. Superior Court (2017) ––– U.S. ––––, 137 S.Ct. 1773, 1776, 198 L.Ed.2d 395 ( Bristol-Myers ).

Bader opposed, arguing that she did not have to establish the product defect at the jurisdictional phase. She contended that she satisfied her burden on the first and second prongs of the jurisdictional analysis with evidence showing that Schmitz was introduced to Avon talc powder products by Avon representatives in the parent community who left catalogs in the teacher's lounge at the school where Schmitz taught in California; Schmitz ordered and purchased Avon products approximately twice yearly thereafter; by the 1970's, Avon sold its products in all 50 states; and Avon sold its talc powder products through a direct sales model whereby Avon representatives sold directly to their customers and had direct, personal relationships with their customers. Bader alternatively requested leave to conduct jurisdictional discovery, seeking discovery on twenty-six topics for the period of 1970 through the present.

At the first hearing on the motion to quash, Bader reiterated that she did not have to establish the product defect at the jurisdictional phase, but much of the hearing focused on whether she should be allowed to pursue jurisdictional discovery. The trial court pointed out that Bader's discovery requests were too broad, and Bader requested discovery on three topics—"the formulas for the products at issue that were sold here, the sources of talc for the products at issue that were sold here, the tests that the corporate representative says exist from third parties as to the talc that was included in the products that were sold here." Later in the hearing, Bader's counsel stated that Bader would need discovery on the formula for the talc and the products at issue, the source of the talc therein, the identity of the suppliers, tests of the talc, and what Avon learned through its membership in the Cosmetic Toiletry and Fragrance Association.

The trial court issued an order finding that Bader did not meet her initial burden to establish the exercise of personal jurisdiction over Avon was constitutional. However, the court allowed jurisdictional discovery and ordered Bader to file a proposed order allowing specific jurisdictional discovery that substantially conformed to counsel's oral proposal at the hearing. Bader proposed jurisdictional discovery, and Avon opposed the discovery on the ground that it vastly exceeded the scope of counsel's oral proposal. After a hearing, the court found Bader's proposed discovery exceeded the scope of her prior oral proposal, but the court allowed her to conduct jurisdictional discovery into "Defendant's talc products with the names Candid, Timeless, Imari, Foxfire, Topaze, Honeysuckle, Wild Jasmine, Night Magic, Pearls & Lace, Moonwind, and Contrast" on the topics of "(1) the formulas for the above-listed products, (2) the sources for those products; and (3) the tests of the sources for those products," for the timeframe of 1979 to 2000.

After discovery, the parties filed supplemental briefing. Along with her supplemental brief, Bader submitted Avon's responses to special interrogatories and excerpts from the deposition of its corporate representative. Bader also submitted a declaration from an expert, Dr. Longo, who declared that his lab had analyzed the talc powder in a 1987 bottle of Night Magic from Canada and found asbestos therein. Pictures taken of the product assessed show a container with "Night Magic," "AVON CANADA INC., MONTRÉAL," and copyright "AVON 1987" on the label. Avon objected that the declaration was untimely and irrelevant, and that the sample tested by Dr. Longo was not properly authenticated.

After another hearing, the trial court granted Avon's motion to quash. The court "assume[d] arguendo" that Bader met her burden of proving that Avon purposefully availed itself of the California market through evidence that Avon sold in all 50 states by 1970. As to the relation between Avon's forum-related activity and the controversy, the trial court found that Bader failed to establish that "she used asbestos-containing talc products (as distinguished from talc products in general) which were manufactured by [Avon] in this state or were distributed, sold, or marketed by [Avon] in this state." The trial court rejected Dr. Longo's test results because Bader failed to provide evidence establishing the relationship between Avon Canada, Inc. and Avon.

The trial court also found that Bader failed to show Avon purposefully injected product into the California market in a way that relates to her claims because there was no evidence that, during the relevant timeframe, Avon "shipped so many units of the Avon talc scents named by [Schmitz] to California personnel responsible for distribution to [Schmitz's] approximate geographical area," and further found that Schmitz's testimony "only [went] to [her] connection to [Avon's] products and [said] nothing about how those products got into California." Finally, the trial court held that the burden had not shifted to Avon to disprove the third prong of the specific jurisdiction analysis concerning the reasonableness and fairness of exercising jurisdiction, and it declined to rule on Avon's evidentiary objections.

Subsequently, the trial court granted Avon's request for prevailing party costs under section 1032 and entered a judgment awarding costs to Avon. Bader timely appealed from the order on the motion to quash and the order and judgment awarding costs.

DISCUSSION

A. Governing Legal Principles

When a defendant moves to quash service for lack of personal jurisdiction, the plaintiff bears the burden of proving facts supporting the exercise of jurisdiction by a preponderance of the evidence. ( Farina v. SAVWCL III, LLC (2020) 50 Cal.App.5th 286, 293, 263 Cal.Rptr.3d 756 ...