The Basketry, Inc. v. The Superior Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Alameda County Super. Ct. No. RG19042771.

BY THE COURT:^[*]

The issue in this writ proceeding is not whether The Basketry, a small, woman-owned Louisiana business specializing in New Orleans themed gift baskets, must ensure that its Web site complies with the American With Disabilities Act (ADA). Rather, it is whether this Louisiana boutique can be sued in California on a claim that it has violated that federal law and, thereby, California's Unruh Civil Rights Act (Unruh Act).^[1]

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It is undisputed that The Basketry does not have sufficient contacts with California to support general personal jurisdiction. However, plaintiff and real-party-in-interest, Anita Ogletree, who is visually impaired, maintains California can exercise specific personal jurisdiction over the small business because it maintains an interactive Web site that, at the time Ogletree accessed the site, allowed online purchases by anyone with access to the world wide web, including in California. (The Web site now precludes sales to California purchasers.) The trial court ruled that binding precedent, principally Thurston v. Fairfield Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231 (Thurston), compelled the conclusion that The Basketry's online presence and the small number of internet purchases by persons accessing the web in California was sufficient to establish that the Louisiana boutique is properly answerable in California to Ogletree's claim that its Web site violated the ADA.

We conclude the instant case differs in material degree from Thurston. And what we discern from pertinent authorities, is that specific personal jurisdiction based on interactive Web site activity is a factually intensive issue and the continuum along which these cases fall is highly nuanced. Given the particular facts of this case, we further conclude it cannot fairly be said that this small Louisiana business has sufficiently focused on or targeted California to make this state a proper jurisdiction for a lawsuit against it based on the ADA and the Unruh Act.

We therefore grant The Basketry's unopposed petition for a writ of mandate requiring the trial court to vacate its order denying its motion to quash and to enter a new order granting the motion.

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BACKGROUND

Ogletree filed an unverified complaint against The Basketry in November 2019, alleging its interactive Web site was not fully accessible to the visually impaired in violation of the ADA and, derivatively, the Unruh Act. She alleges that she "is permanently blind and uses screen readers in order to access the internet and read website content." She maintains she "genuinely wants to avail herself of [The Basketry's] goods and services as offered on [the company's] Website," but makes no claim she attempted, but was unable, to make any purchase on the site. Rather, she alleges she has been unable to "independently and privately investigate [The Basketry's] products, services, privileges, advantages, accommodations, and amenities, as sighted individuals can and do." She alleges she has "attempted[ed] to utilize the Website and plans to continue to attempt to utilize such Website in the near future."

Ogletree acknowledges she "has a dual motivation" in filing suit. She is also a" 'tester, '" which one federal court has defined as an individual with a disability who visits "places of public accommodation to determine their compliance with Title III [of the ADA].' "^[2]

Ogletree sought injunctive relief and damages, but "expressly limit[ed] the total amount of recovery, including statutory damages, attorneys' fees and costs, and cost of injunctive relief not to exceed $74, 999." She thereby prevented removal of the case to federal court. (28 U.S.C. § 1332, subd. (a).)

The Basketry filed a motion to quash service of summons, supported by the declaration of Kristi Brocato, The Basketry's sole shareholder. She and her husband operate the small business which specializes in selling

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personalized, New Orleans-themed gift baskets. It has one retail shop, in Luling, Louisiana. It has never had any physical presence in California or employed any California resident.

After receiving a demand letter from Ogletree and her attorney stating The Basketry's Web site was not in compliance with the ADA, Brocato immediately took steps to remediate any accessibility issues. These included, but were not limited to, adding captioning to videos on the page, making colors more contrasting, and adding descriptive alt text behind each picture on the Web site. This process took approximately two months and cost $6, 500 to complete. In the meantime, however, Ogletree proceeded to file the instant lawsuit, alleging that The Basketry's Web site lacked these features.

The vast majority of The Basketry's sales come from Louisiana residents through phone orders and in-person purchases at its shop. It also has an interactive Web site that allows users to make purchases, which can be shipped throughout the country. According to Brocato, "[t]he website is primarily an online catalog for phone shoppers. Due to the nature of our custom designed gift business model, we encourage people to call the orders in because most customers want custom creations."

The Basketry has never engaged in advertising specifically directed at California or its residents. It does, however, purchase "retargeting ads" through Facebook that "will result in Basketry advertising being displayed in Facebook or Instagram if a user [has] been to [the company's] website or used organic key words related to [its] website." While it targets browsers based on income, age, and associated interests, it has no control over the geographic areas in which users may see these ads.

In 2019, The Basketry's total sales were $1, 864, 883. Of this amount, $128, 872 was from internet sales, $7, 725.23 of which was from internet sales

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originating in California.^[3] Thus, sales to California users amounted to approximately 0.41 percent of its total sales and approximately six percent of its internet sales. Approximately 75 percent of its sales, both in-store and online, were to Louisiana residents.

In 2018, The Basketry's total sales were $1, 800, 198. Of this amount, $103, 130 was from internet sales, $4, 038.72 of which was from online sales originating in California.^[4] In 2017, The Basketry's total sales $1, 800, 000. Of this amount, $83, 362 was from internet sales, $174 of which was from online sales originating in California.

After the lawsuit was filed, The Basketry stopped accepting orders from California residents.

The Basketry moved to quash service of process. It asserted that (1) it did not have sufficient minimum contacts to support personal jurisdiction in California; (2) its contacts with the state were unrelated to the subject matter of the underlying action; and (3) the court's assertion of jurisdiction over it would be unreasonable. Ogletree filed opposition, and following a hearing, the trial court denied the motion in a written order.

After The Basketry filed the instant petition, we issued a stay and Palma^[5] notice. We also twice invited Ogletree to file opposition, which she did not do.^[6] Accordingly, the allegations in the petition are unopposed.

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DISCUSSION

If a nonresident defendant believes it is not subject to the jurisdiction of a California court, it may file a motion to quash service of summons for lack of jurisdiction. (Code Civ. Proc., § 418.10, subd. (a)(1).) California courts "may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (Id., § 410.10.) "Because state law in this field stretches to the limits set by federal law, state law here incorporates federal law. California state courts cannot extend the reach of their personal jurisdiction beyond federal limits." (Buskirk v. Buskirk (2020) 53 Cal.App.5th 523, 531.)

" 'When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.'" (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17 (Burdick), quoting Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.^[7]) "The plaintiff must come forward with affidavits and other competent evidence to carry this [initial] burden and cannot simply rely on allegations in an unverified complaint."^[8] (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210.) "The plaintiff must' "present facts demonstrating that the conduct of defendants related to the pleaded causes is such as to

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constitute constitutionally cognizable 'minimum contacts.'" '" (Archdiocese, supra, 112 Cal.App.4th at p. 434.) Only if the plaintiff meets this initial factual burden, does the burden then shift to the defendant to show that the exercise of jurisdiction would be unreasonable. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney), abrogated on another ground in Bristol-Myers, supra, 137 S.Ct. at p. 1781].)

If the trial court denies a defendant's motion to quash, the defendant "may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action." (Code Civ. Proc., § 418.10, subd. (c).) "When the evidence of jurisdictional facts is not in dispute," as is the case here, "the issue whether the...