Opinion
A157035 A158160 A159522
07-30-2020
In re AMIODARONE CASES
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JCCP 0004956)
These consolidated appeals require us to consider the threshold question whether the trial court has personal jurisdiction over non-resident defendants. Plaintiffs, only some of whom reside in California, allege they have been injured by ingesting a prescription heart medication known as amiodarone. They sued a pharmaceutical distributor headquartered in California and 11 pharmaceutical companies that are neither incorporated nor have their principal place of business in California. The out-of-state defendants moved to quash service of summons on the non-California resident plaintiffs' claims for lack of personal jurisdiction. The trial court granted the motions, concluding that under Bristol-Myers Squibb Co. v. Superior Court (2017) ___ U.S. ___ (BMS) it could not constitutionally exercise personal jurisdiction over the out-of-state defendants with respect to those claims. The non-California plaintiffs now appeal, and we affirm.
The trial court ruling had no effect on any claims brought against McKesson Corporation or on claims brought by California residents against the out-of-state manufacturers.
FACTUAL AND PROCEDURAL BACKGROUND
Four separate complaints were filed in California superior courts alleging that amiodarone was unlawfully distributed, sold and promoted for the treatment of atrial fibrillation, despite concerns about the efficacy and safety of amiodarone when used for that purpose. Plaintiffs allege that amiodarone was approved by the United States Food and Drug Administration (FDA) for use "only as a drug of 'last resort' for recurrent, life-threatening ventricular fibrillation/tachycardia," a condition that is less common but more serious than atrial fibrillation.
Taken together, the complaints included the claims of hundreds of plaintiffs, including residents of states other than California. The actions were coordinated in Alameda County Superior Court. Plaintiffs then filed a Master Administrative Complaint (Complaint) alleging eight causes of action against Wyeth Pharmaceuticals, Inc. (Wyeth), which sold amiodarone under the brand name "Cordarone"; 10 manufacturers of generic amiodarone; and McKesson Corporation (McKesson), a California-based distributor of the medication. None of the defendants is incorporated in California, and only McKesson (a Delaware corporation) has its principal place of business in California.
The generic manufacturer defendants are Sandoz, Inc.; Eon Labs, Inc.; Teva Pharmaceuticals USA, Inc.; Par Pharmaceutical, Inc.; Zydus Pharmaceuticals USA, Inc.; Taro Pharmaceuticals U.S.A., Inc.; Upsher-Smith Laboratories, Inc.; Barr Pharmaceuticals, LLC; Mayne Pharma, Inc.; and Aurobindo Pharma USA, Inc.
One of the eight causes of action, strict products liabilityfailure to warn, is alleged against the generic manufacturers and McKesson, but not against Wyeth. The remaining causes of action are alleged against all defendants: negligencefailure to warn; negligencemarketing and sale; negligence per se; unfair competition (Bus. & Prof. Code, § 17200 et seq.); violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.); fraud and deceit; and wrongful death.
The causes of action in the Complaint arise from allegations that defendants misleadingly promoted off-label uses of amiodarone and failed to ensure that consumers were provided with a medication guide, as required by FDA regulations.
A medication guide is a form of labeling that the FDA requires for certain medications. (21 C.F.R. § 208.3(h); see also 21 C.F.R. § 208.1(c) [patient labeling is required if the FDA determines that such labeling could help prevent serious adverse effects from the medication, or that the medication has serious risks relative to benefits of which patients should be made aware, or that the medication is important to health and adherence to directions for use is crucial to the medication's effectiveness].)
Respondents (all defendants except McKesson) specially appeared and moved to quash service of summons for lack of personal jurisdiction over the claims of plaintiffs residing outside California. Plaintiffs took jurisdictional discovery, and after briefing and a hearing the trial court granted respondents' motion.
The out-of-state plaintiffs (appellants) timely appealed.
The appeal from the ruling on the motion to quash was assigned Case No. A157035. A fifth action was coordinated with the others and was the subject of a separate ruling on the same motion to quash; that appeal was assigned Case No. A158160. An appeal from a related order in the fifth action was assigned Case No. A159522. We granted the parties' stipulation to consolidate the three appeals for all purposes, including briefing, oral argument, and decision.
DISCUSSION
Appellants' primary argument is that because they have shown that there is specific, or case-linked, jurisdiction over respondents, the trial court erred in granting the motion to quash. In the alternative, appellants contend that the trial court should have permitted them to take additional jurisdictional discovery before deciding the issue. Neither argument is persuasive. A. Applicable Law and Standards of Review
The personal jurisdiction of a state court is limited by the Fourteenth Amendment. "Because '[a] state court's assertion of jurisdiction exposes defendants to the State's coercive power,' it is 'subject to review for compatibility with the Fourteenth Amendment's Due Process Clause,' . . . which 'limits the power of a state court to render a valid personal judgment against a nonresident defendant[.]' " (BMS, supra, 137 S.Ct. at p. 1779.) The primary focus of an inquiry into personal jurisdiction is the relationship of the defendant to the forum state. (Ibid.) The nature of that relationship will determine whether the forum state can exercise jurisdiction over the defendant in a given lawsuit. (Id. at pp. 1779-1780.)
Certain affiliations with a state will subject a defendant to general, or "all-purpose," jurisdiction within that state. (BMS, supra, 137 S.Ct. at p. 1780.) No one claims that principles of general jurisdiction apply in this matter.
Instead, appellants claim that California has specific, or case-linked jurisdiction over each non-resident defendant, which exists only if (1) the defendant has purposefully availed itself of forum benefits, (2) the controversy relates to or arises from the defendant's contact with the forum, and (3) the assertion of jurisdiction comports with fair play and substantial justice. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.)
The first of these criteria is not at issue here: the parties do not dispute that the respondents have entered into contracts with McKesson, which has its principal place of business in California, and that the contracts include indemnity provisions in which the respondents agree to submit to the application of California law and the jurisdiction of California courts for proceedings in which McKesson seeks to enforce a respondent's obligations to indemnify.
This case concerns the second of the criteria, which requires " 'an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.' [Citation.] For this reason, 'specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.' " (BMS, supra, 137 S.Ct. at p. 1780, italics added.) "What is needed . . . is a connection between the forum and the specific claims at issue." (Id. at p. 1781.)
Accordingly, in the matter before us, specific jurisdiction requires a connection between California and the specific claims asserted by the appellants (who are not California residents) against the respondents (also non-residents). Notably, appellants do not allege that they were prescribed, or purchased, or were injured by amiodarone in California. We learn from BMS that the fact that a respondent distributes, sells and promotes a prescription drug (in BMS, Plavix; here, amiodarone) in California does not justify the exercise of specific jurisdiction over that respondent for claims unrelated to its California sales. (BMS, supra, 137 S.Ct. at p. 1781.) Nor does the mere fact that a respondent has contracted with a California defendant (in BMS and here, McKesson) for the national distribution of a prescription drug, provide an adequate basis for specific jurisdiction. (Id. at p. 1783.)
For a state to exercise personal jurisdiction over a non-resident defendant, the defendant must have created the claim-related contacts with the forum State; contacts created by the plaintiff or a third party do not suffice. (Walden v. Fiore (2014) 571 U.S. 277, 291 (Walden).) And each defendant's claim-related contacts must be considered independently. (Rush v. Savchuk (1980) 444 U.S. 320, 331-332 (Rush).) The parties' contacts with the forum may not be aggregated to establish jurisdiction: jurisdiction must be established separately for each defendant over whom jurisdiction is exercised. (Ibid.)
Under California law, a plaintiff opposing a motion to quash service of process for lack of specific personal jurisdiction has the initial burden to demonstrate by a preponderance of the evidence that the defendant has purposely directed its activities at residents of the forum and that there is a substantial connection between the defendant's forum contacts and the plaintiff's claim. (Anglo-Irish Bank Corp., PLC v. Superior Court (2008) 165 Cal.App.4th 969, 980.) If there is no conflict in the evidence, the question whether the trial court can exercise jurisdiction is a question of law that we review de novo. (Ibid.) Although the parties before us disagree as to the characterization of the evidence, there is no material conflict in the evidence itself, so our review is de novo. (See ibid.)
A plaintiff opposing a motion to quash such as this is entitled to conduct discovery to establish the jurisdictional facts required to meet its burden of proof. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127 (Automobile Cases).) "[T]o prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction." (Ibid.) We review a trial court's ruling on a motion to continue for abuse of discretion. (Ibid.) B. Analysis
1. Whether There Is Jurisdiction over Respondents
As was the case in BMS, where out-of-state plaintiffs failed to establish specific jurisdiction over out-of-state defendants for claims related to the prescription drug Plavix, the respondents here "did not develop [the drug] in California, did not create a marketing strategy for [the drug] in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California." (BMS, supra, 137 S.Ct. at p. 1778.)
Appellants argue that their claims arise from or relate to the respondents' contacts with McKesson, a California-based corporation, noting that "[e]very [respondent] had contractual agreements with McKesson, the largest distributor of generic drugs in the United States, to distribute, re-package and/or re-label their Amiodarone across the entire U.S." This reliance on respondents' contracts with McKesson requires appellants to distinguish their case from BMS, which rejected the plaintiffs' contention that a defendant's contracting with McKesson to distribute the drug nationally provided a sufficient basis for personal jurisdiction in California state court. (BMS, supra, 137 S.Ct. at p. 1783.) In reaching that conclusion, the Supreme Court noted that the BMS plaintiffs did not allege that the out-of-state manufacturer "engaged in relevant acts together with McKesson in California [or] is derivatively liable for McKesson's conduct in California." (Ibid.)
Appellants state that several respondents did not simply contract with McKesson for distribution of amiodarone, but also sold bulk amiodarone to McKesson, which then "re-packaged or re-labeled" the amiodarone for resale. Appellants then observe that BMS suggests that a California court has jurisdiction over non-resident plaintiffs' claims regarding a drug that a non-resident manufacturer labeled or packaged in California. (BMS, supra, 137 S.Ct. at p. 1780.) But the court in BMS did not state or suggest that the relabeling or repackaging of a non-resident defendant's drug by a company other than the defendant, even if that company is headquartered in California, would suffice to establish specific jurisdiction over that defendant for claims by a non-resident plaintiff. (See ibid.)
Further, appellants fail to specify the services for which each of the respondents contracted with McKesson. Even if, as appellants claim, Teva, Sandoz, UpsherSmith, and Zydus contracted with McKesson to repackage and relabel their amiodarone for distribution across the United States, and even if such arrangements sufficed to support the exercise of jurisdiction over those respondents, that could not constitute a showing of error in the jurisdictional determination as to any other respondent: the jurisdictional requirements must be met as to each respondent individually. (Rush, supra, 444 U.S. at p. 332.) Appellants' appellate briefs, however, fail to distinguish among the various defendants.
Appellants argue this case is distinguishable from BMS in those two primary respects. They argue that under provisions in the respondents' supplier agreements with McKesson, the respondents accept derivative liability for McKesson's conduct in California. They also argue that the respondents engaged in relevant acts in California by virtue of their responsibility "to ensure McKesson distributed the Medication Guide as required by law." This responsibility, they claim, arises from a federal regulation under which respondents and McKesson have "joint and several duties regarding the distribution of the Medication Guide that flow through the State of California," duties which are "reaffirmed" in the supplier agreements.
a. Derivative Liability as a Basis for Jurisdiction
We begin with appellants' argument that the indemnification provisions in respondents' contracts with McKesson constitute respondents' acceptance of "derivative liability" for claims arising from McKesson's distribution of amiodarone to appellants, and therefore support a finding of specific jurisdiction over respondents.
But this argument, which has its genesis in the Supreme Court's observation in BMS that the plaintiffs had not "alleged that BMS is derivatively liable for McKesson's conduct in California" (BMS, supra, 137 S.Ct. at p. 1783), only gets appellants so far. BMS does not define the term "derivatively liable." (Ibid.) Appellants contend that a contractual indemnification clause creates derivative liability for the purposes of personal jurisdiction, but they do not cite authority that such a clause suffices to support jurisdiction.
Respondents note that the court in A.T. Through Travis v. Hahn (E.D. Mo. 2018) 341 F.Supp.3d 1031 interpreted the Supreme Court's use of the phrase "derivatively liable" in BMS as referring to a situation in which an out-of-state entity controls another entity's actions "through the principles of agency or alter-ego." (Id. at p. 1038.) Appellants here do not contend that McKesson was the alter-ego of any respondent. In their opening brief, appellants note that the actions of an agent are attributable to the principal for purposes of personal jurisdiction and in reply they state without any evidentiary or legal support that respondents "effectively establish[ed] an agency relationship" over McKesson by contracting for the distribution of their products. But they do not allege in the Complaint or argue on appeal that McKesson is the agent of any respondent.
Nonetheless, we look closely at the indemnification provisions in the parties' contracts in light of appellants' position that "[i]f [respondents] can be held liable for McKesson's acts of negligence in California under their indemnification agreements, then they are per se 'derivatively liable' for [appellants'] claims against McKesson."
In the supplier agreements, each respondent/supplier "agrees to fully comply with all federal, state and local laws and regulations relating to its obligations under this Agreement or otherwise applicable to the manufacture, handling, sale or distribution of the Products and further agrees to defend, indemnify and hold McKesson harmless from any and all liability arising out of or due to Supplier's nonadherence with such legal or regulatory requirements." (Italics added.)
The effect of this provision is to require respondents to indemnify McKesson for respondents' own conduct in circumstances where respondents fail to adhere to certain legal or regulatory requirements. It does not go the other way and impose liability on respondents for McKesson's acts of negligence.
In the supplier terms and conditions, each respondent also agrees to the following: "To defend, indemnify and hold McKesson Corporation and its subsidiaries harmless against any claims, liability or expense whatsoever, including counsel fees, and compensatory, multiple, exemplary and punitive damages, and fines, alleged to have arisen through the purchase, use, consumption or recall of Supplier's products, whether involving a defect in the product, its labeling or packaging, unless and until it is proven to be due to McKesson's negligent handling of the products after shipment by Supplier. In any proceeding brought to enforce Supplier's obligations under this paragraph the prevailing party shall be entitled to recover reasonable attorneys' fees. Supplier agrees that the laws of California shall apply to any such proceeding, and agrees to submit to the jurisdiction of the Superior Court of the State of California for the County of San Francisco in any action brought pursuant to this paragraph. Supplier expressly waives all claims of lack of personal jurisdiction and inconvenient forum in any such proceeding brought before that court." (Italics added.)
This provision requires respondents to indemnify McKesson against claims arising from respondents' products. By its terms, it does not require respondents to indemnify McKesson against McKesson's own negligence. In fact, it states that certain negligent acts by McKesson (specifically, negligence in handling the respondents' products after they have been shipped) eliminate any duty by respondents to defend, hold harmless and/or indemnify McKesson.
Appellants rely on Insurance Co. of North America v. National American Insurance Co. (1995) 37 Cal.App.4th 195 (National), to support their position that the indemnity provisions quoted above create derivative liability.
National was a dispute between two insurance companies over the allocation of liability for the failure of roofs installed by their insured (Hacienda) in a condominium development. (National, supra, 37 Cal.App.4th at pp. 197-198.) Hacienda, as a subcontractor, agreed to indemnify the general contractor (Buie) " 'for all claims, demands and liability of every nature arising from injury to persons or property resulting from Subcontractor's performance,' " with the indemnification explicitly extending "to all claims, demands and liability arising from the activities of sub-subcontractors and Subcontractor's suppliers while engaged in the performance" of the agreed-upon work, and "to claims, demands and liability for injury contributed to by the negligence or other misconduct of Contractor . . ., as long as the injury is caused in part by the negligence or misconduct of Subcontractor, or by its subcontractor, employees, agents or suppliers." (Id. at p. 199.) The Court of Appeal concluded that the indemnity agreement by its terms created "derivative liability" for Hacienda, meaning that Hacienda had accepted liability for the negligence of others, including Buie and two subcontractors. (Id. at pp. 203-204.) The Court of Appeal further concluded that Hacienda's "derivative liability" was within the scope of coverage provided by its insurance policy, which was the issue in the case. (Id. at p. 204.)
Because the indemnity provisions at issue in the case before us differ so greatly from the provisions at issue in National, we are not convinced by appellants' argument that the provisions here create "derivative liability." Further, the finding of "derivative liability" in National had nothing to do with the issue of specific jurisdiction, and therefore is of no consequence here.
b. Joint and Several Duties as a Basis for Jurisdiction
We turn now to appellants' argument that jurisdiction over respondents is proper in light of "joint and several duties" imposed by law on respondents and McKesson regarding the distribution of the medication guide. This argument relies on a specific federal regulation that sets forth requirements for distributing and dispensing medication guides. (21 C.F.R. § 208.24.)
The regulation requires that respondents, as manufacturers of a drug for which a medication guide is required, must provide either "Medication Guides in sufficient numbers to distributors, packers, or authorized dispensers" or "the means to produce Medication Guides in sufficient numbers to distributors, packers, or authorized dispensers" so as "to permit the authorized dispenser to provide a Medication Guide to each patient receiving a prescription for the drug product." (21 C.F.R. § 208.24(b).) Separately, a "distributor or packer that receives Medication Guides, or the means to produce [them] from a manufacturer . . . shall provide those Medication Guides, or the means to produce [them] to each authorized dispenser to whom it ships a container of drug product." (21 C.F.R. § 208.24(c).) In turn, each pharmacy that distributes a drug for which a Medication Guide is required must "provide a Medication Guide directly to each patient (or to the patient's agent) unless an exemption applies." (21 C.F.R § 208.24(e).)
As we read the regulation, it does not impose joint duties on respondents and McKesson that support a finding of personal jurisdiction. It imposes individual duties on each entity in the chain of distribution of a drug.
In discussing the medication guide in their reply brief, appellants argue that "the claims at issue in the operative Complaint arise in substantial part out of Respondents' relationship with McKesson for actions taken by them in California." (Italics added.) But appellants do not point to evidence or allegations that respondents made any decisions or took any action regarding medication guides in California, jointly with McKesson or unilaterally. Thus, even if appellants' claims may arise from or be related to respondents' relationships with McKesson, appellants have not met their burden to establish that their claims arise from actions taken by respondents in California.
Appellants contend that, "[t]o ensure that Medication Guides were properly distributed, Respondents would have needed to communicate with McKesson. Respondents negligently failed to ensure that McKesson, in California, took measures to ensure the Medication Guides were provided directly to consumers. In other words, for drugs distributed by McKesson, Respondents' failure ultimately occurred in California where McKesson is located." Elsewhere, appellants put it a bit differently in an apparent attempt to link the derivative liability and medication guide issues: "[T]he claims at issue arise out of or relate to the relationship between respondents and McKesson because Respondents failed to work (or worked negligently) with McKesson to ensure Medication Guides were distributed to Appellants. The indemnification agreements between Respondents and McKesson are thus substantially connected with Appellants' injuries." Appellants, however, have not established that respondents had any duty to ensure that McKesson did anything with respect to the medication guides, just as they have not established that respondents undertook any actions in California.
c. Appellants' Attempts to Limit the Reach of BMS
As we have noted, the facts of this case are somewhat similar to those of BMS. In addition to trying to distinguish the facts here from BMS, appellants cite a handful of trial court decisions from state and federal courts outside California that "suggest" that BMS does not "control[] if the plaintiff alleges case-related contact with a forum defendant" (that is, McKesson). This statement is puzzling because BMS is clear that an out-of-state defendant's decision to contract with a California defendant for nationwide distribution of a drug (which is case-related contact between a non-forum defendant and a forum defendant) is not a sufficient basis for personal jurisdiction in California over claims about the drug made by out-of-state plaintiffs against out-of-state defendants. (BMS, supra, 137 S.Ct. at p. 1783.) If a non-resident defendant's contact with a California defendant is to support jurisdiction, the contact must be something more than just entering into a contract. Recognizing this, appellants contend that the "fulfillment" of the contract supports jurisdiction. Yet appellants do not explain what aspect of a supplier's "fulfillment" of the contract supports jurisdiction here. In any event, the cases on which appellants rely are unlike the case before us, and ultimately unpersuasive because jurisdiction depends on facts.
Two of the cases cited by appellants concern claims brought by in-state plaintiffs. That distinguishes them from this appeal, which addresses claims brought by out-of-state plaintiffs. (Ortega v. Pomerantz (D.Or. 2018) 2018 WL 6537129, at *6-7 [distinguishing BMS where plaintiff is an Oregon resident, injury occurred in Oregon as a result of conduct in Oregon by the non-resident defendant's employee or agent; the non-resident defendant's "fulfillment" of a contract with a resident defendant involved the non-resident defendant sending an employee to the forum state to meet contract obligations]; Martins v. Bridgestone Americas Tire Operations, LLC (R.I.Super.Ct. 2019) 2019 WL 469097, at *1, 2, 8 [plaintiff brings wrongful death action individually, as coexecutor of estate of decedent and as decedent's legal beneficiary, where decedent was a forum state resident; allegedly defective truck was sold in forum state].) It comes as no surprise that as a general matter, in-state plaintiffs whose claims arise from the in-state actions or sales of an out-of-state defendant can more readily show that their claims relate to the defendant's purposeful contact with the forum state than out-of-state plaintiffs whose claims arise from out-of-state actions or sales by the defendant.
The three cases cited by appellants where claims were brought by out-of-state plaintiffs are distinguishable because of the nature of the out-of-state defendant's participation in forum-state activities. In J.Y.C.C. v. Doe Run Resources, Corp. (E.D.Mo. 2019) 370 F.Supp.3d 1047, 1056, plaintiffs alleged that the out-of-state defendants were the alter-ego of a Missouri subsidiary. In Re: Volkswagen "Clean Diesel" Litigation (Va.Cir.Ct. 2018) 2018 WL 9393018, at *1, 2, plaintiffs alleged that the out-of-state defendant's employees entered the forum state and directly participated in the marketing, promotion, sale and distribution of goods from the forum-state headquarters of the defendant's subsidiary. In Alcon Labs., Inc. v. Allied Vision Grp., Inc. (E.D.N.Y. 2018) 2018 U.S. Dist. Lexis 219632, at *23, the out-of-state defendants "advertised, sold, and shipped . . . products to New York consumers." To describe these cases is to highlight their differences from the case before us.
In another attempt to limit the reach of BMS, appellants argue that two California cases, Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434 (Vons), and Jayone Foods, Inc. v. Aekyung Industrial Co., Ltd. (2019) 31 Cal.App.5th 543 (Jayone Foods), require us to conclude that appellants established personal jurisdiction over the respondents. We disagree.
In the first of the cases, Vons, supra, the California Supreme Court adopted a sliding scale approach to specific jurisdiction, stating that "[F]or the purpose of establishing jurisdiction the intensity of forum contacts and the connection of the claim to those contacts are inversely related." (Vons, supra, 14 Cal.4th at p. 452.) The Vons litigation arose after customers of Jack-in-the-Box franchises in several states were exposed to E. coli in 1993. (Id. at p. 440.) Franchisees sued the California franchisor (Foodmaker) and meat suppliers, including California supplier Vons, alleging contract and tort claims. (Id. at p. 441.) Foodmaker cross-complained against the suppliers, alleging contract and tort claims, and Vons then cross-complained against Foodmaker and some out-of-state franchisees, including Seabest, whose customers were injured or killed by the E. coli exposure. (Ibid.) The California Supreme Court applied the sliding scale approach to conclude that California courts had jurisdiction over tort claims made by Vons against Seabest based largely on Seabest's contracts with Foodmaker (its franchisor). (Id. at pp. 441-442, 451-452.) As the Vons court explained, "[w]hen, as here, the defendants sought out and maintained a continuing commercial connection with a California business, it is not necessary that the claim arise directly from the defendant's contacts in the state." (Id. at p. 451.) The sliding scale approach was rejected in BMS, which stated, "Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction." (BMS, supra, 137 S.Ct. at p. 1781.)
Accordingly, Vons does not require us to conclude that the respondents' contracts with McKesson support specific jurisdiction over appellants' claims here. Moreover, Vons is distinguishable on its facts: jurisdiction there was based not only on Seabest's contracts with Foodmaker, but also on Seabest's own conduct in California. (Vons, supra, 14 Cal.4th at p. 443.) Appellants do not claim to provide evidence of any conduct by respondents in California.
The other California case on which appellants rely, Jayone Foods, bears no resemblance to the case before us. Jayone Foods concerned the exercise of specific jurisdiction over a non-resident defendant with respect to claims that were brought by California residents on behalf of a deceased California resident, who allegedly used and was harmed by defendant's product in California. (Jayone Foods, supra, 31 Cal.App.5th at p. 563.) It was undisputed that the non-resident defendant (a Korean corporation), shipped its goods to Los Angeles, the defendant's invoices identified Los Angeles as the final destination for the goods, and some of those goods were sold to the Los Angeles retailer from which the decedent had allegedly bought the product. (Id. at pp. 548, 563.) Those are not the facts of our case. Because jurisdiction is fact dependent, Jayone Foods is not at all persuasive.
In sum, we conclude that appellants fail to show the trial court erred in granting the motion to quash.
2. Request for Further Jurisdictional Discovery in the Alternative
Appellants make a half-hearted alternative argument (not even identified as one of the "questions presented" by the appeal) that the orders granting the motions to quash should be vacated and the matter should be remanded with instructions that the trial court order McKesson to provide information that had been requested in jurisdictional discovery regarding McKesson's delivery of amiodarone to the pharmacies used by appellants. Appellants infer that if a plaintiff purchased amiodarone at a pharmacy "soon after" the pharmacy received delivery of amiodarone from McKesson, it is "virtually certain" that the plaintiff actually received amiodarone distributed by McKesson, which, according to appellants, "controls almost 50% of the generic market."
We cannot find a citation to the specific discovery request at issue in appellants' briefs, but our review of the discovery plan shows that plaintiffs sought "[a]ll documents and information relating to whether McKesson distributed or otherwise delivered Amiodarone to the specific pharmacies where the out-of-state Plaintiffs purchased their Amiodarone. Specifically, whether McKesson provided Amiodarone to the dispensing pharmacies for the out-of-state Plaintiffs within 120 days of the Plaintiffs' first and subsequent Amiodarone purchases."
a. Additional Background
Soon after plaintiffs filed their Complaint, they filed a jurisdictional discovery plan. Over defendants' objections, the trial court allowed jurisdictional discovery on certain topics, including McKesson's deliveries to the pharmacies used by the appellants.
The trial court held three subsequent conferences with the parties at which issues of jurisdictional discovery were discussed. At the second conference plaintiffs' counsel informed the court that the parties had agreed to a discovery and briefing schedule. The court adopted the schedule and set a third discovery conference to take place after defendants provided their responses and objections to plaintiffs' requests.
At the third conference, plaintiffs' counsel reported that they were still awaiting some information from McKesson and asked to change the briefing schedule to allow plaintiffs two additional weeks to oppose the motion to quash. Plaintiffs' counsel stated that "unless something really substantive came up," moving the date by two weeks would allow any discovery disputes to be presented to the court without requiring a further extension.
The trial court agreed in principle that the briefing schedule could be modified but declined to set a new schedule at that time. The court told the parties, "[F]inish your meet and confer, identify your issues, plaintiffs get your production and then see where you are. If you have any problem agreeing on it, I will be here next week. I can get on the phone with you all and clarify it, but I would rather not set a date right now with the unknown of what's the discovery issue and what's the documents." The court told the parties that if discovery issues needed to be addressed, "I can get you on calendar in here pretty quickly. [¶] Generally, I'm around. I'm starting a trial on Monday, but I'm usually available late afternoon—mid to late afternoon on days other than Tuesday. Just give me a heads-up if you have an issue still." The record does not indicate that plaintiffs ever took the trial court up on its offer.
In their opposition brief to the motion to quash, plaintiffs argued briefly that if the trial court would not deny the motion outright, it should defer ruling until McKesson completed its production of the requested information about deliveries to the pharmacies used by out-of-state plaintiffs. By granting the motion to quash outright, the trial court denied plaintiffs' request.
In their opposition brief to the motion to quash, plaintiffs also sought more discovery from respondents, who allegedly had not complied with the trial court's discovery order. Appellants do not raise this issue on appeal.
b. Analysis
On appeal, appellants argue that the trial court should have allowed them to obtain the information from McKesson "if the trial court was going to consider it relevant in making its ruling." The argument fails in view of appellants' recognition that the "trial court . . . apparently concluded that the information sought would not make a difference to its analysis."
Notably, appellants do not claim that they sought a continuance from the trial court beyond the general request in their opposition brief that the trial court defer ruling until McKesson completed its production.
In any event, appellants do not convince us that the trial court abused its discretion in denying their request to defer the ruling. Appellants' informal request to defer the ruling was less than a page long, tacked on at the end of their opposition brief to the motion to quash, and was not brought up at the hearing on the motion. Even if we view the request in the opposition brief as a motion for a continuance, we conclude that it was in the trial court's discretion to deny it as untimely, in view of plaintiffs' failure to raise the issue of McKesson's response in the weeks between the discovery conference at which the trial court made itself available to resolve remaining discovery issues and the date the opposition brief was filed.
Further, the appellants have not shown any prejudice because they have not shown that the discovery they sought from McKesson "was likely to lead to the production of evidence establishing jurisdiction" over respondents. (Automobile Cases, supra, 135 Cal.App.4th at p. 127.) Although the Supreme Court in BMS indicated that on the facts of that case information about McKesson's deliveries to pharmacies could be relevant to a jurisdictional analysis, BMS does not stand for the proposition that such information would in itself suffice to overcome a motion to quash, and appellants here fail to adequately explain how the information would lead to the production of evidence establishing jurisdiction over a manufacturer. (BMS, supra, 137 S.Ct. at p. 1783.)
The Supreme Court noted in BMS that there was " 'no evidence to show how or by whom the Plavix they took was distributed to the pharmacies that dispensed it to them.' " (BMS, supra, 137 S.Ct. at p. 1783.) --------
In responding to plaintiffs' jurisdictional discovery, McKesson stated that drugs shipped by McKesson to a location in California are generally shipped from a McKesson distribution center in California, and drugs shipped by McKesson to a location outside California are generally shipped from a McKesson distribution center located outside California. But even if McKesson had delivered amiodarone to appellants' out-of-state pharmacies from California warehouses or distribution centers, that would not show anything more than unilateral action by McKesson, as opposed to action by respondents. (Walden, supra, 571 U.S. at p. 291 [nonresident defendant must create contacts with the forum state].) Appellants do not point to evidence that respondents directed McKesson's logistical arrangements or collaborated with McKesson in developing its logistical arrangements.
We are not persuaded by appellants' attempt in their reply brief to expand on their position. In reply, appellants claim that evidence the appellants ingested amiodarone distributed by McKesson, regardless of whether McKesson shipped the drug from California, would establish jurisdiction over the respondents. The explanation they offer is that they "alleged [r]espondents failed to work with McKesson to distribute" the medication guides, and that the relevant contact with California is that McKesson's "oversight and logistics" of the distribution of amiodarone and the medication guides took place in California. But even if McKesson acted in California to make decisions about how it would distribute and label amiodarone, that would not be evidence that respondents acted in California in connection with McKesson's labeling, which is required to support jurisdiction over them as out-of-state entities. (BMS, supra, 137 S.Ct. at p. 1781.)
DISPOSITION
The orders appealed from are affirmed. Respondents shall recover their costs on appeal.
/s/_________
Miller, J. WE CONCUR: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.