Claassen v. Kuhn

• Decision Date: 31 July 2015
• Docket Number: A138840
• Court: California Court of Appeals Court of Appeals
• Parties: UTZ CLAASSEN, Plaintiff and Appellant, v. HANNES KUHN, Defendant and Respondent.

UTZ CLAASSEN, Plaintiff and Appellant, v. HANNES KUHN, Defendant and Respondent.

A138840

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

July 31, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RG12615788)

A citizen of Germany was recruited by another citizen of Germany to run a German corporation, which corporation controlled two Delaware entities that were developing a solar energy project in California. After only 10 weeks on the job, the new executive resigned. He asserted he was thereafter subjected to a concerted campaign of scurrilous vilification that effectively ruined opportunities for employment at the extremely well-compensated level he would otherwise attain. He sued the German who recruited him for libel in California. The trial court concluded that the defendant German lacked sufficient contacts with California to support specific jurisdiction and granted his motion to quash service of summons. The plaintiff German appeals. We agree with the trial court that this dispute about the aftermath of a German employment relationship is not a proper subject for California jurisdiction. We thus affirm.

BACKGROUND

The General Setting

Plaintiff and appellant Utz Claassen is a citizen of the Federal Republic of Germany. So is defendant and respondent Hannes Kuhn. As will be developed in detailbelow, Kuhn approached Claassen to head Solar Millenium AG¹ (SMAG), a German corporation whose business is developing solar plants for the production of electricity. Claassen accepted, but then quickly resigned, giving as his justification that Kuhn had not accurately reflected the financial situation of SMAG. There followed a number of articles and SMAG press releases about Claassen's departure, which Claassen believed were ruinously defamatory.

Claassen filed suit in Alameda Superior Court, naming as defendants a number of entities and individuals, including Kuhn. The complaint was amended, to ultimately allege eight causes of action, two allegedly based on California law, six on German law. The claims were styled by Claassen as follows: (1) "Slander Per Se under California Law"; (2) "Libel under California Law"; (3) "Intentional Defamation Under Section 823(2) of the German Civil Code in Conjunction with Section 187 of the German Criminal Code"; (4) "Defamation Under Section 823(2) of the German Civil Code in Conjunction with Section 186 of the German Criminal Code"; (5) "Insult Under Section 823(2) of the German Civil Code in Conjunction with Section 185 of the German Criminal Code"; (6) "Liability Under Section 823(1) of the German Civil Code"; (7) "Endangering Credit Under Section 824 of the German Civil Code"; and (8) "Intentional Damage Contrary to Public Policy Under Section 826 of the German Civil Code."

As also discussed in detail below, after being served in London with the amended complaint, Kuhn made a special appearance to contest jurisdiction. The trial court granted Kuhn's motion to quash service, which Claassen appealed.

The State of the Record and the Standards

Governing Our Review

Preliminarily, a few words must be addressed to the very limited record on this appeal, and how it relates to the rules for our review.

"Motions are usually made and determined on affidavits alone. [Citations.] A verified pleading is itself an affidavit and may be considered as such. [Citations.] Thus, a verified complaint may be considered . . . as a counteraffidavit on a motion to quash service of process . . . ." (Atkins, Kroll & Co. v. Broadway Lbr. Co. (1963) 222 Cal.App.2d 646, 653-654; see 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 220, p. 828.)

The operative pleading here is Claassen's 31-page first amended complaint. The only complete copy of it in the clerk's transcript is the one accompanying the proof that service of summons was effected on Kuhn in the United Kingdom. That amended complaint is not verified, and thus has no evidentiary value in satisfying Claassen's burden of proving jurisdiction. (Epic Communications, Inc. v. Richwave Technology, Inc. (2009) 179 Cal.App.4th 314, 334 ["The complaint is no substitute for evidence in opposing a motion to quash"]; Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th 423, 434.) So, Claassen cannot rely on allegations in his amended complaint to create a conflict with evidence in the form of the declarations submitted in connection with Kuhn's motion. (See Joslin v. Marin Municipal Water Dist. (1967) 67 Cal.2d 132, 147-148; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 230, pp. 672-673.) That said, there is one factual detail in the amended complaint we shall treat as an admission by Claassen: that he is a citizen of the Federal Republic of Germany.

As will be seen, the trial court properly sustained objections by Kuhn to additional materials offered by Claassen in connection with the motion to quash. For a variety of reasons, both Claassen and Kuhn have in their briefs referred to material that either was not before the trial court or is not in the record on appeal. Because the trial court is entitled to have the propriety of its ruling evaluated on the basis of the evidence,argument, and information known to the court at the time of its ruling (California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal § 334, p. 385), these references will be disregarded. (Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14.)²

Accordingly, with the exception of the single factual detail taken from the amended complaint, the only actual sources of evidence we consider are Kuhn's declaration and those parts of Claassen's declaration to which the trial court did not sustain objections.

" 'When a defendant moves to quash service of process' for lack of specific jurisdiction, 'the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.' [Citation.] 'If the plaintiff meets this initial burden, then the defendant has the burden of demonstrating "that the exercise of jurisdiction would be unreasonable." ' [Citations.] Where, as here, [there is] ' "no conflict in the evidence . . . the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record." ' [Citation.]" (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney).) "The plaintiff must do more than merely allege jurisdictional facts; the plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts." (BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428-429.) Declarations with "vague assertions of ultimate fact rather than specific evidentiary facts are not sufficient." (Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1454.) Assertions based on information and belief command no credibility. (Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212.) And "[s]o far as [the trial court] has passed on the . . .credibility of witnesses, its implied findings are conclusive." (Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1171, fn. 1.)

The following narrative conforms to these principles, our summary of the allegations of the causes of action in Claassen's first amended complaint done for the sole purpose of outlining the general nature of the dispute that Claassen wants to have determined in a California courtroom.

The Start and End of Claassen's Employment—And Its Aftermath

Kuhn is a citizen of the Federal Republic of Germany, who has been domiciled in the United Kingdom since 2007. He is a co-founder and board member of SMAG, a German corporation whose business is developing solar plants for the production of electricity. SMAG owns or controls 100 percent of Solar Millenium, Inc. (SMI), and indirectly controls a majority interest in Solar Trust of America, LLC (Solar Trust). SMI and Solar Trust were organized under Delaware law, and each had its principal place of business in Alameda County.³ Kuhn owns a minority of shares of SMAG. He has neverhad a "direct ownership interest" in either SMI or Solar Trust, although he was on the Solar Trust Board of Directors from 2009 to 2011.

Claassen is also a German citizen.⁴ After completing his education in Germany and the United Kingdom, he served in a number of high-level management positions, culminating as chief executive officer of Sartorius AG from 1997 to 2003, and then of EnBW Energie Baden-Wurttemberg AG, an electric public utility, from 2003 to 2007. When he left that job in 2007, he became a consultant for the Cerberus Group, apparently an American "private equity institution."

According to Claassen, SMI and Solar Trust planned a number of "projects" in California, including construction of a solar plant in Blythe, and were negotiating for a grant from the Department of Energy to assist in financing the facility. Apparently while Claassen was still working for Cerberus, he was considering an offer to become "Chief Executive Officer of a large electronics and video solutions group with its Americanheadquarters in California," at which time he was personally recruited by Kuhn to join SMAG. Claassen accepted. According to Claassen, the decisive factor in his deciding to join SMAG was "a business plan, which included detailed financial projections for the Solar Millenium Group based largely...