Date: 10-01-2020

Case Style:

Susan Jean Bader v. Avon Products, Inc.

Case Number: A157401 and A158611

Judge: Brown, J.

Court: California Court of Appeals First Appellate District, Division Four on appeal from the Superior Court, County of Alameda

Plaintiff's Attorney: Michael T. Stewart and Denyse F. Clancy

Defendant's Attorney: Claire C. Weglarz, Florence A. McClain, Yen-Shyang Tseng, Sandra Meeyoun Ko, Alexander Gerard Calfo and Jeffrey Matsuzo Gebhardt

Description: 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
1 Bader substituted for Schmitz as the plaintiff during the pendency of
this appeal after Schmitz passed away. Although Schmitz was the named
plaintiff during the proceedings below, we refer to Bader as the named
plaintiff throughout this opinion for ease of reference.
2 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2
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
3 Bader challenges the costs award in consolidated appeal no. A158611.
3
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) 137 S.Ct. 1773, 1776
(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
4
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
5
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.
6
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 (Farina).) When there is
conflicting evidence, the trial court’s factual determinations are not disturbed
on appeal if supported by substantial evidence. (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons).) When there is no
conflict in the evidence, however, the question of jurisdiction is one of law and
the reviewing court engages in an independent review of the record. (Ibid.)
7
California courts may exercise jurisdiction on any basis consistent with
the Constitutions of California and the United States. (§ 410.10.)
Jurisdiction is proper if a defendant has minimum contacts with California
such that a suit here does not offend traditional notions of fair play and
substantial justice. (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310,
316 (Internat. Shoe Co.); Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd.
(2019) 31 Cal.App.5th 543, 552 (Jayone).)
Personal jurisdiction can be general (all-purpose) or specific (caselinked). (Bristol-Myers, supra, 137 S.Ct. at pp. 1779–1780.) A court has
general jurisdiction over defendants who are at home in the court’s forum;
general jurisdiction allows a court to hear any claim against a defendant,
regardless of where the underlying events occurred. (Farina, supra, 50
Cal.App.5th at p. 294.) In contrast, specific jurisdiction allows a court to
adjudicate only those disputes relating to the defendant’s contact with the
forum. (Id.; Bristol-Myers, at p. 1780.)
Only specific jurisdiction is at issue in this appeal.4 Specific
jurisdiction exists where (1) the defendant has purposefully availed itself of a
forum’s benefits; (2) the controversy relates to or arises out of the defendant’s
contacts with the forum; and (3) the exercise of jurisdiction comports with fair
play and substantial justice. (Pavlovich v. Superior Court (2002) 29 Cal.4th
262, 269.) Regarding the first and third prongs, Bader argues that Avon
purposefully availed itself of the California forum through its representatives’
sales of Avon talc powder products directly to Schmitz in California through
its “direct sales model,” and the exercise of jurisdiction over Avon would be
fair and reasonable. As it did below, Avon challenges only the relatedness
4 The trial court found that it did not have general jurisdiction over
Avon, and Bader does not challenge this ruling.
8
prong. Thus, we accept that the first and third prongs of the specific
jurisdiction analysis are satisfied, and we turn to the relatedness prong.
B. Relatedness
The questions presented in this appeal are whether the relatedness
prong is satisfied and whether Bristol-Myers’s rejection of the “sliding scale
approach” applied by the California Supreme Court in Bristol-Myers Squibb
Co. v. Superior Court (2016) 1 Cal.5th 783, 806, and previously endorsed in
Vons, supra, 14 Cal.4th at pp. 452, 455, requires Bader to prove that the
Avon perfumed talc powder products used by Schmitz contained asbestos—
the alleged defect5—at the jurisdictional stage. Bader contends that she
satisfied the relatedness prong because her claims are that Avon sold
Schmitz defective talc powder products that contained asbestos and caused
Schmitz injury, and these claims arise out of or relate to the proven direct
sale of the allegedly defective talc powder products by Avon representatives
to Schmitz in California. Avon contends that Bristol-Meyers, supra, 137 S.Ct.
at p. 1781, requires proof that the talc powder products used by Schmitz
contained asbestos because sales of talc powder products without asbestos
cannot serve as the jurisdictional basis for claims relating to talc powder
products with asbestos. As we explain below, Bader has the better argument.
1. Bristol-Myers’s Rejection of the Sliding-Scale Approach
The issue presented in this appeal requires us first to address briefly
the origin and rejection of the sliding scale approach to specific jurisdiction.
5 In a talc powder asbestos case, the “material issue” or “question is
whether it is more likely than not that the talc product was contaminated
with asbestos during the time the plaintiff used it.” (LAOSD Asbestos Cases
(2020) 44 Cal.App.5th 475, 489.) Avon correctly observes that “[w]ithout the
asbestos, there is no defect.”
9
In Vons, the California Supreme Court addressed the question of what test
applies to determine whether a plaintiff’s claims are “ ‘related to or “arise[]
out of” ’ ” the defendant’s forum contacts. (Vons, supra, 14 Cal.4th at p. 446.)
Noting that the United States Supreme Court had yet to clarify standards for
the relatedness prong, the California Supreme Court discussed the varying
tests used, observing that some cases hold that a defendant’s forum contacts
have to be a “proximate cause” of the plaintiff’s claims and others that the
defendant’s forum contacts have to be a “ ‘but for’ ” cause of the plaintiff’s
claims. (Id. at p. 451, fn. 4, pp. 461–468.) The court rejected these tests,
along with a “substantive relevance” test whereby the relatedness prong is
met only when the conduct constituting a forum contact took place in the
forum and normally would be pleaded under state substantive law applicable
to the plaintiff's cause of action. (Id. at pp. 464, 468–469, 473.) The court
adopted a “substantial connection” test: “A claim need not arise directly from
the defendant’s forum contacts in order to be sufficiently related to the
contact to warrant the exercise of specific jurisdiction. Rather, as long as the
claim bears a substantial connection to the nonresident’s forum contacts, the
exercise of specific jurisdiction is appropriate.” (Id. at p. 452.) The court also
adopted what it later referred to as a “sliding scale” approach to specific
jurisdiction, holding, “[F]or the purpose of establishing jurisdiction the
intensity of forum contacts and the connection of the claim to those contacts
are inversely related.” (Ibid.; Bristol-Myers Squibb Co. v. Superior Court,
supra, 1 Cal.5th at p. 806.)
In Bristol-Myers, the United States Supreme Court rejected the
California Supreme Court’s “ ‘sliding scale’ ” approach, which it characterized
as an approach pursuant to which the strength of the requisite connection
between the forum and the plaintiff’s claims is relaxed if the defendant has
10
extensive forum contacts unrelated to those claims. (Bristol-Myers, supra,
137 S.Ct. at p. 1781.) The plaintiffs in Bristol-Myers were California and
non-California residents who brought a mass tort action claiming that
Bristol-Myers’s drug, Plavix, was defective and caused plaintiffs’ injuries.
(Id. at p. 1778.) Bristol-Myers sought to quash service of summons with
respect to the non-California residents who bought, used, and were injured by
Plavix outside California. The California Supreme Court found specific
jurisdiction existed under the sliding scale approach: Bristol-Myers
advertised Plavix in California, made $900 million from California Plavix
sales, operated five research facilities in California, employed hundreds of
sales representatives in California, maintained a state-government advocacy
office in Sacramento, entered into a contract with a California distributor to
distribute Plavix, and the nonresidents’ claims were very similar to those of
the California residents. (Id. at pp. 1778–1779.)
The United States Supreme Court reversed. (Bristol-Myers, supra, 137
S.Ct. at p. 1784.) It viewed the sliding scale approach as a “loose and
spurious form of general jurisdiction” with “no support” in precedent. (Id. at
p. 1781.) For specific jurisdiction, neither “a defendant’s general connections
with the forum” nor “ ‘continuous activity of some sorts within [the] state’ ” is
“ ‘enough.’ ” (Ibid.) “In order to exercise specific jurisdiction over a claim,
‘there must be an “affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the
forum State.’ [Citation.] When there is no such connection, specific
jurisdiction is lacking regardless of the extent of a defendant’s unconnected
activities in the State.” (Ibid., quoting Goodyear Dunlop Tires Operations, S.
A. v. Brown (2011) 564 U.S. 915, 930–931, fn. 6 [“[E]ven regularly occurring
sales of a product in a State do not justify the exercise of jurisdiction over a
11
claim unrelated to those sales”].) The Court applied these principles in
holding that there was no specific jurisdiction over nonresidents’ claims
notwithstanding the fact that other buyers were prescribed, obtained, and
ingested Plavix in California. (Bristol-Myers, supra, at p. 1781.) “Nor [wa]s
it sufficient—or even relevant—that [Bristol-Myers] conducted research in
California on matters unrelated to Plavix”; likewise, “[t]he bare fact that
[Bristol-Myers] contracted with a California distributor” was insufficient
where the plaintiffs failed to trace their drugs to that distributor. (Id. at
p. 1783.) “What [wa]s needed—and what [wa]s missing [t]here—[wa]s a
connection between the forum and the specific claims at issue.” (Id. at
p. 1781.)
2. Proof of Asbestos
With that background, we turn to whether Bristol-Myers mandates that
Bader establish at the jurisdictional stage the alleged defect in the Avon talc
powder products that she used. We do not believe it does.
First, we reject any insinuation on Avon’s part that this should be
treated as a situation where there are two separate product lines such that
the exercise of personal jurisdiction implicates the invalidated sliding scale
approach. There is one product line at issue—Avon’s perfumed talc powder.
Bader established that Schmitz purchased and used this product in
numerous scents. In verified discovery responses, Avon refers to these
products as its “talc-based body powder products.” Avon contends that these
products did not contain asbestos, and Avon will prevail if Bader cannot
prove otherwise. However, this is not a case where the plaintiff claims harm
in the forum from an allegedly defective product and seeks to establish
personal jurisdiction over the defendant by showing the defendant’s extensive
in-forum sales of a different product. Nor is it a case like Bristol-Myers where
12
nonresident plaintiffs purchased the defendant’s product and suffered injury
therefrom outside of the forum but sought to sue based on the defendant’s inforum sales of the same product to other consumers. (Bristol-Myers, supra,
137 S.Ct. at pp. 1780–1781.)
Second, Bristol-Myers requires that, in order for a court to exercise
specific jurisdiction, “ ‘the suit’ must ‘aris[e] out of or relat[e] to the
defendant’s contacts with the forum’ ” (Bristol-Myers, supra, 137 S.Ct. at
p. 1780), not that a plaintiff suing over injury caused by an allegedly
defective product prove the product defect at the jurisdictional phase. Avon
claims that, had the plaintiffs’ allegations in Bristol-Myers been that they
consumed contaminated Plavix, they would have had to have shown they
purchased the contaminated drug, but this contention misconstrues the
relevant inquiry. The plaintiffs in Bristol-Myers alleged that Plavix was
defective. (Bristol-Myers, supra, 137 S.Ct. at pp. 1778–1779 [reciting the
California Supreme Court’s statement that the nonresident and resident
plaintiffs’ claims are based on the same “allegedly defective product” (italics
added)].) Specific jurisdiction over the California residents’ claims was
undisputed, as Bristol-Myers sold the allegedly defective drug in California to
residents who were injured in the forum; their claims thus arose from or
related to Bristol-Myers’s contacts with the forum. (See id. at pp. 1779, 1781
[noting that the California residents could bring their claims in California];
id. at p. 1783 [observing the large group of Texas residents could likely sue
Bristol-Myers as a group in their home state as could the group of Ohio
residents].) Conversely, there was no personal jurisdiction over the claims of
the nonresident plaintiffs who bought, used, and were injured by Plavix
outside California. (Id. at pp. 1781–1782, 1784.) Bader is effectively in the
13
same position as the California plaintiffs, and Avon attempts to read into
Bristol-Myers a proof of defect requirement that is not there.6
Instead, at the jurisdictional phase, courts speak of allegedly defective
products. “[I]f the sale of a product of a manufacturer . . . is not simply an
isolated occurrence, but arises from the efforts of the manufacturer . . . to
serve, directly or indirectly, the market for its product in other States, it is
not unreasonable to subject it to suit in one of those States if its allegedly
defective merchandise has there been the source of injury to its owner or to
others.” (World–Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286,
297–298, italics added; Bristol-Myers, supra, 137 S.Ct. at p. 1779 [plaintiffs
sued over an “allegedly defective product” (italics added)]; Secrest Machine
Corp. v. Superior Court (1983) 33 Cal.3d 664, 671 [manufacturer’s efforts to
serve the market for its product in California “should have caused
[manufacturer] to anticipate being haled into a California court to defend an
action arising from an alleged defect in its product” (italics added)].) Not
requiring proof of a product defect at the jurisdictional phase is consistent
with the purpose of the personal jurisdiction doctrine, which focuses not on
6 Avon cites Lawson v. Simmons Sporting Goods, Inc. (Ark. 2019) 569
S.W.3d 865, 870–872 and Montgomery v. Air Serv Corporation, Inc.
(Wash.Ct.App. 2019) 446 P.3d 659, 664–666, in a footnote to support its
argument that a defendant’s forum activities unrelated to the plaintiff’s
specific claims do not justify the exercise of personal jurisdiction. While
Avon’s statement of law is accurate, neither of those cases holds that a
product defect must be proven at the jurisdictional stage. (Lawson, at p. 871
[holding that in a negligence suit after an alleged slip-and-fall in defendant’s
Louisiana store, Arkansas did not have specific jurisdiction by virtue of the
defendant’s advertising and promotional activities in Arkansas];
Montgomery, at pp. 664–666 [finding no personal jurisdiction in Washington
over the defendant in a lawsuit asserting the negligent provision of
wheelchair services in a Dallas airport even though the defendant provided
non-wheelchair services in a Seattle airport].)
14
whether the defendant is liable, but on whether the defendant has created
sufficient minimum contacts with the forum such that requiring him to
answer a lawsuit therein related to those activities does not offend “
‘traditional notions of fair play and substantial justice.’ ” (Internat. Shoe Co.,
supra, 326 U.S. at p. 320.) “By requiring that individuals have ‘fair warning
that a particular activity may subject [them] to the jurisdiction of a foreign
sovereign,’ [citation] the Due Process Clause ‘gives a degree of predictability
to the legal system that allows potential defendants to structure their
primary conduct with some minimum assurance as to where that conduct will
and will not render them liable to suit.’ ” (Burger King Corp. v. Rudzewicz
(1985) 471 U.S. 462, 472, italics added.)
Finally, while Avon accurately cites cases reciting the general rule that
the merits of a dispute are not at issue at the jurisdictional stage, but proof of
jurisdictional facts may at times overlap with the merits, none of the cases
cited by Avon required proof of a product defect on a motion to quash where
sale of the allegedly defective product created and formed the basis of the
jurisdictional contact. (Sonora Diamond Corp. v. Superior Court (2000) 83
Cal.App.4th 523, 540; Regents of University of New Mexico v. Superior Court
(1975) 52 Cal.App.3d 964, 970, fn. 7; In re Automobile Antitrust Cases I & II
(2005) 135 Cal.App.4th 100, 119.) Proof of jurisdictional facts may overlap
with the merits, for example, where the plaintiff must make a showing of
alter ego or merger in order to establish that a third party’s contacts with the
forum can be attributed to the defendant (Sonora Diamond Corp., at p. 540;
Regents of University of New Mexico, at p. 970, fn. 7) or where there must be
some evidence that the defendant was involved in a conspiracy (In re
Automobile Antitrust Cases I & II, at p. 119). Avon does not contend that any
of the situations discussed in these cases is at issue.
15
In sum, neither Bristol-Myers nor any other authority cited by Avon
requires proof of a product defect at the jurisdictional phase, and the trial
court erred by requiring Bader to establish that the Avon perfumed talc
powder used by Schmitz contained asbestos at this juncture.7
3. Bader’s Claims Arise Out of or Relate to Avon’s Forum Contacts
In addition to ruling that Bader had failed to establish the presence of
asbestos in the talc powder products used by Schmitz and sold or marketed
by Avon in California, the trial court found that Bader did not meet her
burden as to relatedness because: 1) Avon’s admission that it sold product
nationally was insufficient to show relatedness; 2) there was no evidence that
Avon shipped “so many units of any of the Avon talc scents” used by Schmitz
to California personnel responsible for distribution to Schmitz’s geographical
area during the relevant time period; and 3) Schmitz’s testimony went only to
her connection to Avon’s products, saying nothing about how those products
got into California. While the court correctly found Avon’s national product
sales insufficient (Bristol-Myers, supra, 137 S.Ct. at p. 1781; Jayone, supra,
31 Cal.App.5th at p. 558 [“under Bristol-Myers, [defendant’s] sales of
products unconnected to the [allegedly defective product] are not relevant to
determining whether the action is related to [defendant’s] contacts with
California”]), we disagree with the court’s finding that Bader failed to satisfy
her burden on the relatedness prong.
7 Because the trial court erred in requiring Bader to establish that the
Avon talc powder products that Schmitz used contained asbestos on the
motion to quash, we do not address Bader’s alternative arguments that she
established that Avon’s talc powder products contained asbestos or that the
trial court erred in disallowing jurisdictional discovery aimed at adducing
proof of asbestos.
16
Regarding Avon’s California contacts, Bader has always contended, and
Avon has never disputed, that Avon’s sale of talc powder products through its
sales representatives directly to Schmitz in California are contacts that Avon
created with California that satisfy purposeful availment. Thus, we accept
these to be Avon’s relevant contacts.
On this record, the undisputed evidence demonstrates that Bader’s
claims arise out of or relate to Avon’s California contacts. (Bristol-Myers,
supra, 137 S.Ct. at p. 1780.) The complaint alleges that the Avon talc powder
products that Schmitz purchased and used were defective because they
contained asbestos and caused Schmitz cancer. Bader established that
Schmitz lived and worked in California all of her life and developed
mesothelioma. Schmitz started using Avon’s perfumed talc products because
“Avon ladies” in the parent community left catalogs in the teachers’ lounge
and front office at the school where she worked. Schmitz identified a 1984
Avon catalog as representative of those she looked at and ordered from when
she was a teacher. Schmitz ordered Avon perfumed talc powder about twice
yearly for twenty years, and the products she bought all said “Avon.” Bader
also submitted evidence that, when asked whether Avon sold its cosmetic talc
products in stores, Avon’s corporate representative testified that Avon sells
product through a direct sales model with non-employee sales
representatives. “We are a direct sales company, and what that means is, we
are—you know, you might hear, ‘ding dong, Avon calling.’ We are door to
door. It is direct representative to consumer. So, it is a very personal
relationship that [the Avon representative] has with her—with her—with
her, you know, her customer. So, it’s a direct sales model, which is a unique
model.” This evidence establishes that Avon used sales representatives to
market and sell the products at issue directly to Schmitz in California. This
17
evidence establishes a sufficient “ ‘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.’ ”
(Bristol-Myers, supra, 137 S.Ct. at p. 1780.)8
Accordingly, we agree with Bader that the court erred in granting
Avon’s motion to quash.
C. Costs
In her consolidated appeal, Bader argues that, because the trial court
improperly found that it lacked specific jurisdiction over Avon, Avon is not
entitled to an award of costs as a prevailing party. (§ 1032, subd. (b) [a
“prevailing party” is entitled to costs].) Avon agrees that the prevailing party
costs award must be reversed upon reversal of the trial court’s ruling on the
8 The sliding scale approach is no longer good law, but cases after
Bristol-Myers have found that Vons’s rejection of the “ ‘but for’ ” and
“ ‘proximate cause’ ” tests in favor of a “ ‘substantial connection’ ” test for
relatedness remain valid. (Jayone, supra, 31 Cal.App.5th at pp. 560–561
[finding a substantial nexus between the in-forum contacts and the wrongful
death suit]; Halyard Health, Inc. v. Kimberly-Clark Corp. (2019) 43
Cal.App.5th 1062, 1072 [endorsing Vons’s rejection of the “ ‘ “proximate
cause” ’ ” and “ ‘ “but for” ’ ” test]; see Halyard Health, Inc., at pp. 1081–1083
(dis. opn. of Rubin, J.) [the “substantial connection” test applies after BristolMyers although the sliding scale test is invalid]; David L. v. Superior Court
(2018) 29 Cal.App.5th 359, 374, fn. 8 [Vons’s rejection of a proximate cause
requirement for relatedness may still be viable after Bristol-Myers].) The
United States Supreme Court may soon shed light on this issue in Bandemer
v. Ford Motor Co. (Minn. 2019) 931 N.W.2d 744, cert. granted Jan. 17, 2020,
No. 19-369, ___ U.S. ___, where the question presented is whether the “arise
out of or relate to” requirement is met when none of the defendant’s forum
contacts caused the plaintiff’s claims, “such that the plaintiff’s claims would
be the same even if the defendant had no forum contacts.” (Docket for 19-369

[as of Sept. 28, 2020].) But we need not opine on the boundaries of the
relatedness inquiry here because, under Bristol-Myers, there is a clear
affiliation between the controversy, Avon’s contacts, and the forum.
18
motion to quash. Because we reverse the trial court’s order on the motion to
quash, we similarly reverse the order awarding Avon prevailing party costs.

Outcome: The trial court’s order granting Avon’s motion to quash service of summons and its order and judgment awarding costs to Avon as a prevailing party are reversed. Bader shall recover her costs on appeal.

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