Wiener v. Perez CA4/1 ( 2022 )

Filed 2/24/22 Wiener v. Perez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STEVEN DONALD WIENER, D078297
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00006513-CU-FR-CTL)
RAPHAEL GAMA PEREZ, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.
Downey Brand, Jay-Allen Eisen; Zuccaro Law Firm, Emil A. Zuccaro;
Law Offices of Cathy E. Crosson, Cathy E. Crosson; Law Offices of Clyde
DeWitt and Clyde F. DeWitt for Plaintiff and Appellant.
Law Offices of Philip H. Dyson and Philip H. Dyson for Defendants and
Respondents.
INTRODUCTION
Steven Donald Wiener (Steve1) appeals from an order quashing service
of summons on the named non-California defendants in his lawsuit for lack of
personal jurisdiction. In his lawsuit, Steve alleged he formed a partnership
with his father, Donald Joseph Wiener Coss (Donald), in the 1980s to
purchase land in Mexico, where his father lived. Steve alleged Christine
Louise Wiener (Christine), Donald’s daughter from another marriage, and
Raphael Gama Perez (Gama), Donald’s lawyer in Mexico, conspired with
Donald to defraud him of his interest in the Mexico real estate investments.
At the time of the alleged fraud, Steve claimed Donald was living in
California.
Steve, a California resident, sued Gama, Christine in her individual
capacity and as executor for the Estate of Donald Joseph Wiener Coss (the
Estate), and the Estate itself (collectively, Respondents). Because Gama and
Christine are legal residents of Mexico and are not physically located in the
United States, Steve served them with the summons and complaint in
Mexico, in accordance with the Hague Convention.
Respondents moved to quash the service of summons for lack of
personal jurisdiction. They asserted that Gama and Christine are, and were
at all relevant times, legal residents of Mexico; the land at issue is in Mexico;
Donald’s will, which Steve seeks to invalidate, was executed in Mexico; and
the totality of the Estate is in Mexico. Respondents asserted they have not
had sufficient minimum contacts with California, such that exercise of
jurisdiction would not comport with due process under the state and federal
1 As the parties have, we refer to members of the Wiener family by their
first names to avoid any confusion.
2
constitutions. The trial court granted the motion. We agree with the trial
court’s conclusion that California does not have personal jurisdiction over any
of the Respondents. We, therefore, affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Underlying Complaint
The following summary of allegations is taken from the underlying
unverified complaint.2
Donald was a successful entrepreneur in the adult entertainment
industry with a business headquartered in San Diego. In the 1970s, Donald
moved from San Diego and relocated his “ ‘official’ ” residence to Tijuana,
Mexico and began commuting to San Diego for work. In 1987, Steve, a
California resident, formed a partnership with his father, who was living in
Mexico, for the purpose of buying, developing, and owning real estate in
Mexico.
Steve and Donald purchased five parcels of land in Chapala, Jalisco,
Mexico, each contributing equally, and held the land in “a real estate
2 “Allegations in an unverified complaint are insufficient to satisfy” an
appellant’s burden of demonstrating facts justifying the exercise of California
jurisdiction. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th
100, 110 (Automobile Antitrust Cases).) Instead, the appellant must provide
affidavits and other authenticated documents in order to demonstrate
competent evidence of jurisdictional facts. (Ibid.) Moreover, although the
appellant is not required to prove the merits of his claims in order to
establish jurisdiction, where he alleges facts relevant to jurisdiction, we do
not accept an allegation as true where there is evidence to the contrary.
“[A]ny conflicts in the evidence must be resolved against the appellant and in
support of the order” granting a motion to quash service of summons for lack
of personal jurisdiction. (Wolfe v. City of Alexandria (1990) 217 Cal.App.3d
541, 546 (Wolfe).)
3
investment ownership structure known in Mexico as ‘Fideicomisos.’ ” It is
alleged that these are similar to trusts under California law. Steve and
Donald held the land in three separate Fideicomisos established in 1987,
1994, and 1996, respectively (collectively, the Mexico trusts). They were joint
owners or co-beneficiaries to the Mexico trusts until at least March 2017.
Donald’s health began to decline in 2012, and he was “housebound for
the last [six] years of his life” in a home in Bonita, San Diego County, until he
died in May 2018.3 Donald “rarely left the Bonita home” and was dependent
on live-in caregivers.
Christine is Steve’s half-sister and Donald’s daughter from a previous
marriage. She travelled from Mexico to visit Donald in the Bonita home
“infrequently” from 2002 to 2016, and “more frequently” after Donald broke
his hip in 2016. She often stayed at the Bonita home for weeks at a time
between 2016 and 2018. Steve believed Christine “isolated” and “unduly
influenced Donald about his feelings for Steve” during those visits, including
telling Donald that “Steve was a thief, trying to steal Donald’s wealth from
him.”
Gama is “a Mexican lawyer licensed to practice in Baja California,
Mexico.” Steve first met Gama in the 1980s when Gama was handling
Donald’s divorce from Christine’s mother in Mexico. Donald subsequently
told Steve that Gama was “their Mexican attorney” handling “their legal
matters in Mexico,” including managing the Mexico trusts. Steve alleged he
signed many documents related to the Mexico trusts that Gama prepared
over the years. He often met with Donald and Gama at Steve’s San Diego
3 In his declaration in opposition to the motion to quash, Steve averred
that he purchased the Bonita home in 2002 for Donald “to take up residence”
due to his declining health.
4
office, and once at the Bonita home after Donald became housebound. Based
on Donald’s statements and Gama’s conduct, Steve believed Gama was also
his lawyer.
Steve alleged that, sometime around late 2016 or early 2017, “Donald,
Gama, and Christine entered into an unlawful agreement to interfere with
and destroy” his property interests in the Mexico trusts. By March 2017,
Christine had “poisoned Donald’s feelings toward Steve.” Donald, Christine,
and Gama came up with “[t]he [b]ig [l]ie” to have Steve “unwittingly assign
his rights” in the Mexico trusts to Donald, so Donald could then leave these
assets to Christine. They “fabricated a story to tell Steve,” that: Donald
wanted to remove the properties from the Mexico trusts because he was tired
of paying for the administrative costs of the trusts. They could instead hold
title directly in their joint names and Steve would get 100 percent ownership
of the properties when Donald died. To do all of this, Steve had to give
Donald power of attorney so Donald could sign the papers to make the
necessary changes in Mexico.
Donald told Steve “[t]he [b]ig [l]ie” in March 2017 and, in furtherance of
this “[c]onspiracy,” Gama prepared and sent Steve a power of attorney
document (POA), which Steve executed in San Diego in March 2017. In June
2017, Steve executed a second POA prepared and sent by Gama, because the
first was allegedly “legally inadequate/insufficient to accomplish the
[Respondents’] [c]onspiracy.” According to Steve, Gama falsely represented to
him that the second POA “was required to avoid payment of taxes and other
‘exactions.’ ” Both POAs, attached as exhibits to the underlying complaint,
directly recite provisions of Mexican law and state that Steve grants Donald
power of attorney to transfer property rights under “the Jalisco Civil Code.”
The POAs further state that Steve grants Donald the power to execute “all
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and every procedure . . . including the cancellation, total or partial of
[the]Trust Agreements.”
Around the same time, in April 2017, Christine drove Donald to Gama’s
office in Tijuana, Mexico, where Donald wrote and executed a holographic
will that stated, in relevant part:
“I Donald Joseph Wiener . . . Divorced and a legal resident of
Mexico where I have my domicile in . . . Tijuana, Baja California
being of sound mind and acting of my free volition under no
duress and or under any other influence desire to make my last
will and testemant (sic) [¶] . . . [¶] I Herbey (sic) appoint my
Daughter Christine Louise Wiener Montijo as sole and universal
heir to all my assets in Mexico.”
The will named Christine as the executor of the Estate in Mexico. In
September 2017, Donald, Gama, and Christine allegedly used the second
POA to remove Steve as a surviving joint co-owner on the Mexico trusts and
to transfer title in the properties held in the Mexico trusts to Donald alone.
Donald died approximately six months later, in May 2018. Steve only
learned of the will, and the alleged conspiracy, upon Donald’s death.
In February 2019, Steve sued Gama, Christine, in her individual
capacity and as executor of the Estate, and the Estate itself, in the Superior
Court of San Diego County. He alleged Respondents engaged in an unlawful
conspiracy to defraud him of his property interests in the Mexico trusts and,
additionally, Donald and Gama breached their fiduciary duties owed to him.
He asserted causes of action for breach of fiduciary duty, constructive fraud,
fraud, intentional interference with contractual relationships, intentional
interference with prospective economic advantage, and civil conspiracy. He
also asserted a cause of action for declaratory relief, seeking a judicial
6
determination that Donald’s will was “invalid” and, consequently, Donald
died intestate and his Estate “shall be distributed according to the laws of
intestate succession.”
Not mentioned in the underlying complaint is the fact that, before filing
the underlying California lawsuit, Steve filed a separate lawsuit in Mexico,
challenging the validity of Donald’s holographic will and the division of the
Mexico properties in the Estate.
II.
Motion to Quash Service of Summons
Christine and Gama were served with the summons and complaint in
Mexico, in accordance with the Hague Convention. Respondents specially
appeared and moved to quash service of the summons for lack of personal
jurisdiction or, in the alternative, forum non conveniens. Christine and
Gama each submitted declarations in support of their motion to quash.
Christine is a citizen of Mexico and the United States. At all relevant
times, she resided in and was domiciled in Chapala, State of Jalisco, Mexico,
which is “more than 1,200 miles” from the United States/Mexico border. She
does not work or own any business in the United States and has never
established any residency or domicile in California. She visited Donald in
Bonita “frequently” during the last years of his life, from 2016 to 2018, to care
for her father at his request.
Gama is a citizen of Mexico and has, at all relevant times, resided in
and was domiciled in Tijuana, Baja California, Mexico. He is licensed to
practice law in Mexico, not California. He does not work or own any business
or assets in the United States. He was Donald’s “long time lawyer” and
assisted Donald in his “Mexican business affairs.” He also represents
Christine in the Mexican probate action filed by Steve to set aside Donald’s
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will. Gama has never traveled to the United States to deliver any POA to
Steve; in March 2017, he emailed POAs to Steve at the direction of his client
Donald.
Respondents argued that all assets in dispute were in Mexico, Donald
had maintained his domicile in Mexico, both Gama and Christine were
domiciled in Mexico, and none of the Respondents had consented to
jurisdiction in California. They asserted the fraudulent or misleading actions
alleged in the complaint were not expressly aimed at California. Instead, the
alleged actions were aimed at Mexico and any effects of those alleged actions
occurred in Mexico. They further asserted that Steve had already filed an
action in Mexico seeking to invalidate the holographic will, and that Mexico
was the appropriate venue to address his claims.
Steve submitted his declaration in opposition to the motion to quash.
He argued each of the Respondents had minimum contacts with California
sufficient to support specific, or limited, personal jurisdiction. He alleged
Gama sent him approximately eight emails between March and August 2017,
and provided copies of the emails as attachments to his declaration. Steve
alleged that in the emails, “Gama . . . explained that due to Donald’s status
as a legal ‘immigrant’ in Mexico, title of the trusts’ real estate assets could be
held in Donald's name.” Steve further alleged that Gama was at the Bonita
house when he dropped off at least one of the POAs, Gama had the POAs
apostilled4 in California, and Gama also asked him to sign papers that same
day concerning a Mexican business in which he and Donald were partners.
4 An apostille is a “standard legal certificate attesting that the
signatures, seals, or stamps are authentic on a public document used in a
foreign country.” (Black’s Law Dict. (11th ed. 2019) p. 120, col. 2.)
8
Steve conceded Gama was not authorized to practice law in California, but
asserted, through these actions, Gama engaged in an unauthorized practice
of law in California.
As to Christine, Steve alleged she frequently visited Donald in
California in the last few years of his life, and it was during these visits that
she committed the tortious acts that gave rise to the underlying complaint.
He averred in his declaration that Donald’s personality changed dramatically
in the last years of his life, and that those changes coincided with Christine
spending a significant amount of time with Donald in the Bonita home.
Steve “strongly believe[d]” Christine had “ ‘poisoned’ ” Donald against him.
He asserted the Estate was “joined as the successor responsible entity to
Donald’s torts committed in California,” and it would “be bound by the
outcome of the case” insofar as Christine was also named in her capacity as
the executor of the Estate.
In support of his opposition to the motion to quash, Steve submitted
declarations from two other attorneys in Mexico, Miguel Alfredo Araiza
Viloria and Jacob Salvador Lozano Collazo. Viloria explained the scope of the
Mexico action and asserted that it differed from the California action,
because the California action concerned the validity of the POAs executed in
San Diego, while the Mexico action concerned the validity of Donald’s will.
He further averred that the California Secretary of State’s office, which
apostilled the second POA, is beyond the subpoena power of the Mexico
court. Collazo provided information regarding the properties and businesses
registered to Christine in Mexico.
The trial court allowed the parties to file supplemental briefing. In his
supplemental opposition, Steve once again argued California had specific
jurisdiction over Gama and Christine “as a co-conspirator.” He separately
9
alleged, more generally, that California had “personal jurisdiction” over the
Estate. (Capitalization omitted.) He argued the Estate “is the successor
entity that must answer for its decedent tortfeasor’s liabilities and
obligations that existed, or contingently existed, as of the moment of Donald’s
death.” He then asserted that all of Donald’s conduct underlying the claims
at issue occurred while Donald was residing in Bonita, except that the will
was purportedly executed in Tijuana.
Respondents submitted a reply but did not directly address jurisdiction
over the Estate or Christine as executor. Gama submitted a declaration in
support of the reply, averring that he never represented Steve and was not
counsel for “any trust related to any property at issue in the current
litigation.”
The trial court granted Respondents’ motion to quash service of
summons for lack of personal jurisdiction. The court found the evidence was
insufficient to show a conspiracy⎯a factual finding Steve does not challenge
on appeal⎯and that the remaining facts were insufficient to show Christine
or Gama had voluntarily directed their activities towards California or
purposefully availed themselves of the benefits of conducting activities within
the state. The court found that Gama did not target Steve “for the specific
purpose of inducing him to give up any property rights” he had in Mexico,
that he did not intend to conduct any business or “in any other way gain
directly or indirectly from dealings in this state.” As to Christine, the court
found “the only evidence presented is that she visited her father in San Diego
and did so more frequently starting in 2016 . . . when he broke his hip.” As to
the Estate, the court found: “[A]ll of the estate assets are located in Mexico.
The holographic will at issue relates to Mexican assets and disposition of
those assets is under Mexican law. [Donald’s] conduct relating to the alleged
10
fraud was expressly aimed at Mexico, not California, and all of the harm
suffered as a result of the Estate or Donald Wiener’s conduct concerns the
Mexican real estate.”
In addition, the trial court found the exercise of jurisdiction by
California would be unreasonable, given that “[t]here is a burden of requiring
[Respondents] to travel from Mexico to California, especially now that the
border is essentially, if not completely, closed to travel,” and “this case
concerns Mexican property under Mexican law and there is no interest for
California except that a California resident lost real estate in Mexico.”
Because it granted Respondents’ motion to quash for lack of personal
jurisdiction, the court found the issue of forum non conveniens moot. Steve
timely appealed.
DISCUSSION
Steve contends the trial court erred by granting the motion to quash.
He maintains his previous assertions that California has specific jurisdiction
over Gama, but has shifted positions on appeal with respect to Christine and
the Estate. Conceding that the Estate is not an appropriate party (Tanner v.
Estate of Best (1940) 40 Cal.App.2d 442, 445), Steve now contends California
has general jurisdiction over Christine, as executor of the Estate, because it
would have had jurisdiction over Donald while he was still alive. He also
contends, in his reply brief, that California has jurisdiction over Christine as
an individual, but does not specify whether that jurisdiction is general or
specific.
Respondents assert the trial court correctly concluded that it did not
have specific jurisdiction over Christine or Gama and that it is unreasonable
for California to exercise jurisdiction over any of the named Respondents.
They further argue this court is not required to consider new theories raised
11
for the first time on appeal. Because jurisdiction is a fundamental matter of
law, we exercise our discretion to consider Steve’s contentions on the merits.
In doing so, we conclude, as the trial court did, that California does not have
personal jurisdiction over any of the Respondents and it would further be
unreasonable for California to exercise jurisdiction over these foreign, non-
resident defendants.
I.
Relevant Legal Principles
California’s long-arm statute permits courts in California to exercise
jurisdiction “on any basis not inconsistent with the Constitution of this state
or of the United States.” (Code Civ. Proc., § 410.10; Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons).) The exercise of
personal jurisdiction by courts in California is thus limited primarily by the
Due Process Clause of the United States Constitution. (See Ford Motor Co. v.
Mont. Eighth Judicial Dist. Court (2021) 141 S.Ct. 1017, 1024 (Ford Motor)
[“The Fourteenth Amendment’s Due Process Clause limits a state court’s
power to exercise jurisdiction over a defendant.”]; (Bristol-Myers Squibb Co.
v. Superior Court (2017) 137 S.Ct. 1773, 1779 (Bristol-Myers) [“It has long
been established that the Fourteenth Amendment limits the personal
jurisdiction of state courts.”].)
“The Due Process Clause [of the United States Constitution] protects
an individual’s liberty interest in not being subject to the binding judgments
of a forum with which he has established no meaningful ‘contacts, ties, or
relations.’ [Citation.] 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
12
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, 471–472 (Burger King).) “Although a nonresident’s
physical presence within the territorial jurisdiction of the court is not
required, the nonresident generally must have ‘certain minimum contacts . . .
such that the maintenance of the suit does not offend “traditional notions of
fair play and substantial justice.” ’ ” (Walden v. Fiore (2014) 571 U.S. 277,
283–284 (Walden); accord Vons, supra, 14 Cal.4th at p. 444.)
As the United States Supreme Court recently explained, there are “two
kinds of personal jurisdiction: general (sometimes called all-purpose)
jurisdiction and specific (sometimes called case-linked) jurisdiction.” (Ford
Motor, supra, 141 S.Ct. at p. 1024.) “A state court may exercise general
jurisdiction only when a defendant is ‘essentially at home’ in the State.
[Citation.] General jurisdiction, as its name implies, extends to ‘any and all
claims’ brought against a defendant. [Citation.] Those claims need not relate
to the forum State or the defendant’s activity there; they may concern events
and conduct anywhere in the world. But that breadth imposes a correlative
limit: Only a select ‘set of affiliations with a forum’ will expose a defendant to
such sweeping jurisdiction. [Citation.] In what we have called the ‘paradigm’
case, an individual is subject to general jurisdiction in her place of domicile.”
(Ibid.)
“Specific jurisdiction is different: It covers defendants less intimately
connected with a State, but only as to a narrower class of claims. The
contacts needed for this kind of jurisdiction often go by the name ‘purposeful
availment.’ [Citation.] The defendant, . . . must take ‘some act by which [it]
purposefully avails itself of the privilege of conducting activities within the
forum State.’ [Citation.] The contacts must be the defendant’s own choice
13
and not ‘random, isolated, or fortuitous.’ [Citation.] They must show that the
defendant deliberately ‘reached out beyond’ its home⎯by, for example,
‘exploi[ting] a market’ in the forum State or entering a contractual
relationship centered there. [Citation.] Yet even then⎯because the
Defendant is not ‘at home’⎯the forum State may exercise jurisdiction in only
certain cases. The plaintiff’s claims . . . ‘must arise out of or relate to the
defendant’s contacts’ with the forum. [Citations.] Or put just a bit
differently, ‘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 and is therefore subject to the State’s regulation.” ’ ”
(Ford Motor, supra, 141 S.Ct. at pp. 1024−1025.)
“Finally, in analyzing the exercise of specific jurisdiction, ‘[o]nce it has
been decided that a defendant purposefully established minimum contacts
within the forum State, [those] contacts may be considered in light of other
factors to determine whether the assertion of personal jurisdiction would
comport with “fair play and substantial justice.” ’ [Citations.] Courts may
evaluate the burden on the defendant of appearing in the forum, the forum
state’s interest in adjudicating the claim, the plaintiff’s interest in convenient
and effective relief within the forum, judicial economy, and ‘the “shared
interest of the several states in furthering fundamental substantive social
policies.” ’ ” (Vons, supra, 14 Cal.4th at pp. 447−448, citing Burger King,
supra, 471 U.S. at pp. 476−477.) Thus, “even if the defendant has
purposefully engaged in forum activities,” the “minimum requirements
inherent in the concept of ‘fair play and substantial justice’ may defeat the
reasonableness of jurisdiction.” (Burger King, at pp. 477–478; Pavlovich v.
Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich).)
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On a motion to quash the service of summons on jurisdictional grounds,
the plaintiff has the initial burden to prove, by a preponderance of evidence,
that the defendant had adequate minimum contacts with the forum. (Vons,
supra, 14 Cal.4th at p. 449; Automobile Antitrust Cases, supra, 135
Cal.App.4th at p. 110.) If the plaintiff does so, the burden shifts to the
defendant to demonstrate the exercise of jurisdiction would be unreasonable.
(Vons, at p. 449; Automobile Antitrust Cases, at pp. 110–111.) On appeal,
“[w]hen there is conflicting evidence, the trial court’s factual determinations
are not disturbed . . . if supported by substantial evidence.” (Vons, at p. 449.)
However, “[w]hen no conflict in the evidence exists, . . . the question of
jurisdiction is purely one of law” and our review is de novo. (Ibid.;
Automobile Antitrust Cases, at p. 111.)
II.
California Does Not Have Specific Jurisdiction over Gama
We first address Steve’s contention that California has specific
jurisdiction over Gama. “The inquiry whether a forum state may assert
specific jurisdiction over a nonresident defendant ‘focuses on “the relationship
among the defendant, the forum, and the litigation.” ’ ” (Walden, supra, 571
U.S. at pp. 283–284; accord Bristol-Myers, supra, 137 S.Ct. at p. 1782.)
Courts employ a three-part test to determine whether a defendant has had
sufficient minimum contacts with the forum state to be subject to specific
jurisdiction. A court may exercise specific jurisdiction over a nonresident
defendant only if: (1) the defendant has purposefully availed himself of
forum benefits or purposefully directed his activities at the forum state; (2)
the controversy is related to or arises out of the defendant’s contacts with the
forum; and (3) the assertion of personal jurisdiction would comport with the
principles of fair play and substantial justice. (Pavlovich, supra, 29 Cal.4th
15at p. 269; Vons, supra, 14 Cal.4th at pp. 446–447; Picot v. Weston (9th Cir.
2015) 780 F.3d 1206, 1211 (Picot) [applying California law to determine
whether California could exercise specific jurisdiction over a nonresident
defendant].)
As to the first prong, “[t]he exact form of our jurisdictional inquiry
depends on the nature of the claim at issue.” (Picot, supra, 780 F.3d at
p. 1212.) For claims sounding in contract, courts generally apply a
“ ‘purposeful availment’ ” analysis, where the focus is on the “ ‘defendant’s
intentionality.’ ” (Pavlovich, supra, 29 Cal.4th at p. 269; Picot, at p. 1212.)
“ ‘This [inquiry] is only satisfied when the defendant purposefully and
voluntarily directs his activities toward the forum so that he should expect,
by virtue of the benefit he receives, to be subject to the court’s jurisdiction
based on’ his contacts with the forum.” (Pavlovich, at p. 269.) For claims
sounding in tort, courts generally apply a “ ‘purposeful direction’ test and look
to evidence that the defendant has directed his actions at the forum state,
even if those actions took place elsewhere.” (Picot, at p. 1212; accord
Pavlovich, at p. 270.) This test, also known as the “Calder effects test”
derived from Calder v. Jones (1984) 465 U.S. 783, “requires intentional
conduct expressly aimed at or targeting the forum state in addition to the
defendant’s knowledge that his intentional conduct would cause harm in the
forum.” (Pavlovich, at p. 271.)
Steve first contends there is specific jurisdiction over Gama because
Gama was “Donald’s agent in performing acts that accomplished Donald’s
fraudulent transfer of Steve’s interest in the Mexican properties to himself.”
But on appeal, Steve does not challenge the trial court’s finding that “the
evidence was insufficient to show a conspiracy.” Despite this concession, he
continues to rely heavily on the alleged conspiracy, perhaps because it is
16
essentially the gravamen of the underlying complaint. He begins his
discussion of specific jurisdiction over Gama by asserting: “Donald was the
ultimate malefactor, lying to Steve about his intention to put the Mexican
property in joint ownership and directing Gama to obtain the necessary
power of attorney from Steve. . . . [¶] Acting as Donald’s attorney, Gama
repeated—and, thus ratified—Donald’s lies.”
Although Steve does not need to establish the merits of his claim to
prove jurisdiction, it is still his burden to demonstrate jurisdictional facts as
to “each separate nonresident defendant, even in a case alleging a
conspiracy.” (Automobile Antitrust Cases, supra, 135 Cal.App.4th at p. 110.)
“Allegations of conspiracy do not establish as a matter of law that if one
conspirator comes within the personal jurisdiction of our courts, then
California may exercise jurisdiction over other nonresident defendants who
are alleged to be part of that same conspiracy. Personal jurisdiction must be
based on forum-related acts that were personally committed by each
nonresident defendant. The purposes and acts of one party⎯even an alleged
coconspirator⎯cannot be imputed to a third party to establish jurisdiction
over the third party defendant.” (Id. at p. 113, italics added.) Because he
concedes the evidence was insufficient to show a conspiracy, Steve cannot
rely on any such alleged conspiracy to establish a jurisdictional fact. Still, he
cannot simply impute alleged malfeasance by Donald to Gama in order to
establish jurisdiction over Gama.
Second, Steve contends Gama purposefully directed his activities “at
Steve, a California resident,” by sending emails and having phone
conversations with Steve directing him to execute the POAs and by preparing
and sending the POAs to Steve. This conduct is insufficient to establish
personal jurisdiction over Gama because, as he acknowledges, the alleged
17
conduct was not directed at California the forum, but “at Steve, a California
resident.” (See Picot, supra, 780 F.3d at p. 1214 [In determining whether a
defendant purposefully directed his activities at the forum state, “we must
‘look[ ] to the defendant’s contacts with the forum State itself, not the
defendant’s contacts with persons who reside there.’ ”].)
As the United States Supreme Court has explained, “the relationship
[among the defendant, the forum, and the litigation] must arise out of
contacts that the ‘defendant himself’ creates with the forum State.” (Walden,
supra, 571 U.S. at p. 284.) Similarly, the “‘minimum contacts’ analysis looks
to the defendant’s contacts with the forum State itself, not the defendant’s
contacts with persons who reside there.” (Id. at p. 285.) Thus, “the plaintiff
cannot be the only link between the defendant and the forum. Rather, it is
the defendant’s conduct that must form the necessary connection with the
forum State that is the basis for its jurisdiction over him.” (Ibid.) “Due
process requires that a defendant be haled into court in a forum State based
on his own affiliation with the State, not based on the ‘random, fortuitous, or
attenuated’ contacts he makes by interacting with other persons affiliated
with the State.” (Id. at p. 286, italics added.)
Here, Steve presents no evidence suggesting Gama himself
intentionally created any contacts with California. It is undisputed that
Gama is a citizen of Mexico and is domiciled in Mexico. He does not work or
own any business or assets in the United States. He is not licensed to
practice law in California. He did not purposefully seek out business in
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California.5 (See Hanson v. Denckla (1958) 357 U.S. 235, 251–253 [finding
insufficient minimum contacts to establish jurisdiction where “[t]he
defendant trust company has no office in Florida, and transacts no business
there,” beyond remitting trust income to settlor residing there].) Rather, as
set forth in the complaint, Gama began representing Donald in a divorce
proceeding in Mexico, where Gama does practice law, while Donald was
living in Mexico. Donald then continued to engage Gama on matters arising
under Mexican law, including the Mexico trusts. The fact that Gama
eventually spoke with Donald about his affairs in Mexico while he was
housebound in California does not establish sufficient minimum contacts
with California. (See Walden, supra, 571 U.S. at p. 285.)
Gama’s contacts with Steve are equally insufficient to establish
personal jurisdiction over Gama. Again, our “analysis looks to the
defendant’s contacts with the forum State itself, not the defendant’s contacts
with persons who reside there.” (Walden, supra, 571 U.S. at p. 285, italics
added.) The only reason that Gama contacted Steve was because of Steve’s
involvement in the Mexico trusts. Accordingly, those contacts were not
directed at California, and were instead the kind of “ ‘random, fortuitous, or
attenuated’ contacts [made] by interacting with other persons affiliated with
5 Steve alleges he believed Gama was also his attorney but whether
Gama was his attorney was a disputed fact, and he offers no evidence, such
as a retainer agreement or payment of attorney fees to Gama, beyond his own
self-serving statements to support that assertion. (See Automobile Antitrust
Cases, supra, 135 Cal.App.4th at p. 110 [“Declarations cannot be mere vague
assertions of ultimate facts, but must offer specific evidentiary facts
permitting a court to form an independent conclusion on the issue of
jurisdiction.”].)
19
the State,” which have been expressly declared an insufficient basis to assert
personal jurisdiction. (See id. at p. 286.)
Steve asserts, to the contrary, that Gama “actively targeted” him in
California with the express intent of furthering Donald’s fraud, but the
evidence does not support that contention. First, as we have already
explained, Steve cannot rely on the alleged conspiracy with Donald because
he concedes there was insufficient evidence of a conspiracy. Further, it is
undisputed that Steve voluntarily entered into real estate transactions with
his father in Mexico and that the Mexican real estate was held in Mexican
trusts established under Mexican law. Notably, Steve does not contend that
Gama induced him to enter into the real estate transactions in the first
instance, nor would the evidence support such a contention. Instead, the
emails upon which Steve relies were sent years later, in 2017, and, on their
face, address only Donald’s request to make changes to the previously
established Mexico trusts. Thus, at most, the evidence establishes that
Gama contacted Steve because of the relationship that Steve had previously
established with Donald in Mexico.
Steve’s assertion that Gama made direct misrepresentations to him in
emails, or on the phone, is equally unsupported. The trial court found “there
is no evidence to suggest Mr. Gama targeted [Steve] for the specific purpose
of inducing him to give up any property rights he had in property located in
Mexico.” Steve cites to his own self-serving declaration, in which he averred
that he relied on Gama’s alleged misrepresentations, but he does not directly
address the trial court’s finding or contend the finding was not supported by
substantial evidence. Accordingly, we accept the trial court’s unchallenged
determination. (See Vons, supra, 14 Cal.4th at p. 449; Strasner v. Touchstone
Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.) Moreover,
20
the emails that Steve himself included in that same declaration demonstrate
that Gama told Steve the purpose of the POAs was to allow Donald to
dissolve the trusts and take direct title to the land in his own name.6 Thus,
substantial evidence supports the trial court’s conclusion that Gama did not
purposefully target Steve with the intent to defraud him.
Edmunds v. Superior Court (1994) 24 Cal.App.4th 221 (Edmunds) is
instructive. There, the court concluded California did not have specific
jurisdiction over an attorney who represented a California resident
concerning a real estate transaction in Hawaii, despite the fact that the
attorney traveled to California to defend a deposition in connection with the
Hawaiian litigation. (Id. at pp. 224, 226, 232.) Further, as here, the plaintiff
in Edmunds made allegations of a conspiracy, but the court noted the
purposes of the other parties could not be imputed to the attorney and that
its inquiry should instead focus on whether the attorney intended to conduct
business in California. (Id. at p. 233.) The court concluded the attorney did
not intend to conduct business in California, primarily because “[the
attorney] clearly showed that his understanding of his role was that his
actions were confined to litigation activities in the Hawaii . . . case.” (Ibid.)
Here, Gama’s role was similarly limited to representing his Mexican client
with respect to real estate held in Mexican trusts under Mexican law.
Even if we were to accept Steve’s contention that Gama targeted him
with the intent to defraud, which we do not, it remains that any alleged fraud
6 We also note the allegation that Steve relied on Gama’s alleged
misrepresentation regarding his inability to hold title to the land in Mexico is
inconsistent with the allegation in the underlying complaint that he relied on
Donald’s representation that they would hold title to the Mexican real estate
jointly in both of their names.
21
concerned real estate held by his Mexican client in Mexico, not California. In
Picot, the plaintiffs, both residents of California, asserted specific jurisdiction
over Weston, a resident of Michigan, based on a business relationship they
had entered into to develop a certain technology. (Picot, supra, 780 F.3d at
p. 1210.) Plaintiffs alleged Weston tortiously interfered with their contract to
sell the technology to a third-party buyer by threatening to sue them and, by
doing so, he directed his activities at them, in California. (Id. at pp. 1210,
1213.) Applying Walden, the court concluded California could not assert
jurisdiction over Weston based on the threats because the alleged conduct
was targeted, at most, at them as plaintiffs. (Id. at p. 1214.) In addition, the
court found the effects of Weston’s actions also were not tethered to
California simply because the plaintiffs were in California and, instead, the
economic injury would follow them wherever they chose to live. (Id. at
p. 1215.) The same is true here. Any effect of Gama’s alleged conduct is not
tethered to California simply because Steve is present in California, and
would instead, follow him wherever he may go. (See also Walden, supra, 571
U.S. at p. 290 [“Regardless of where a plaintiff lives or works, an injury is
jurisdictionally relevant only insofar as it shows that the defendant has
formed a contact with the forum state. The proper question is not where the
plaintiff experienced a particular injury or effect but whether the defendant’s
conduct connects him to the forum in a meaningful way.”].)
Third, Steve contends Gama purposefully availed himself of the
benefits and protections under California law by having the POAs notarized
and apostilled in California. We are not persuaded. Again, it was Steve that
voluntarily entered into a real estate transaction in Mexico, and the only
reason that the POAs needed to be notarized or apostilled in the first
instance was because Steve executed them while physically present in
22
California. As Gama’s email explained, the very purpose of the apostille was
to establish the authenticity of the POA for use in Mexico. Steve presents no
evidence that Gama himself benefited in any way from the process or the
resulting documents.7
Edmunds is again instructive here. The Edmunds court found the
“mere facts” that the attorney came to California to defend a deposition—
which likely involved, for example, a court reporter that certified a transcript
under California law—and “made phone calls and wrote letters to and from
this state, and accepted payment from a California client, [did] not establish
purposeful availment of the benefits and protections of California law.”
(Edmunds, supra, 24 Cal.App.4th at p. 234.) Here, the mere fact that Gama
facilitated the execution of documents in California necessary for his Mexico
client to complete a transaction in Mexico is no more helpful in establishing
that Gama purposefully availed himself of the privileges of conducting
business in California. Nor does it establish, as Steve asserted in the trial
court, that Gama engaged in the unauthorized practice of law in California.
In sum, we conclude Steve has failed at the first step of his burden to
demonstrate that Gama either purposefully directed his activities at
California, or purposefully availed himself of the privilege of conducting
activities in California. We, therefore, need not and do not address the
second step of whether the suit arises out of Gama’s alleged forum-related
activities.
7 Steve asserts that Gama himself took the document to the Secretary of
State to be apostilled but Gama stated, in verified discovery responses, that
he instead hired a third-party to do so.
23
III.
California Does Not Have Personal Jurisdiction over Christine, Either in Her
Individual Capacity or As Executor of the Estate
A. Christine in Her Individual Capacity
As a preliminary matter, Steve did not assert California has personal
jurisdiction over Christine in her individual capacity in his opening brief on
appeal. He now asserts, for the first time in his reply brief, that Christine in
her individual capacity is “subject to personal jurisdiction” in California,
because she “[h]ad [e]xtensive [c]ontacts with and [p]resence in California
[r]elated to [t]his [a]ction.” He cites to no authority for his assertions, and the
lack of clarity in his briefing makes it impossible to discern whether he is
asserting there is general or specific jurisdiction over Christine as an
individual. We generally do not consider arguments raised for the first time
in the reply brief (see American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal.App.4th 258, 275–276 [“Fairness militates
against allowing an appellant to raise an issue for the first time in
a reply brief[.]”]), nor are we required to develop the appellant’s arguments
for him. The absence of cogent legal argument or citation to authority allows
this court to treat the contention as waived. (Berger v. California Ins.
Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 (Berger); Dills v.
Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) However, to
the extent Steve now asserts California has specific jurisdiction over
Christine in her individual capacity, we will address that issue since the
parties addressed it in the trial court.
Again, although he concedes the evidence was insufficient to show a
conspiracy, Steve continues to rely on the allegation of a conspiracy as a
jurisdictional fact. He asserts California has specific jurisdiction over
24
Christine because “she resided with Donald at his Bonita home for ‘extended’
periods” during “her visits” with her father, during these visits, “she
conspired with [Donald] to misappropriate Steve’s interest in the Mexico
propert[ies] so that Donald could bequeath the property to her in full,” and
“most importantly,” she took Donald from California to Tijuana to execute the
allegedly fraudulent will. As we have said, Steve cannot establish
jurisdiction on the alleged conspiracy he concedes was not supported by the
evidence. Steve has simply failed to demonstrate how Christine purposefully
directed any activity at California or purposefully availed herself of any
benefits or protections of California.
It is not disputed, however, that Christine is a citizen of Mexico and
domiciled there. She does not work or own any business in the United States
and has never established any residency or domicile in California. She
visited Donald in Bonita “frequently” during the last years of his life, from
2016 to 2018, to care for her father at his request. “While ‘physical entry into
the State . . . is certainly a relevant contact,’ [citation], a defendant’s
transitory presence will support jurisdiction only if it was meaningful enough
to ‘create a “substantial connection” with the forum state.’ ” (Picot, supra,
780 F.3d at p. 1213.) We conclude Christine’s extended visits with her father
while he was housebound in Bonita did not create any such substantial
connection with California.
B. Christine as Executor of the Estate
Shifting positions on appeal, Steve now asserts that California has
general jurisdiction over Christine as executor of the Estate based on claims
that arose against Donald during his lifetime. He concedes “[t]his argument
was not made explicitly in the trial court,” and explains, “[a]lthough
[R]espondents did not raise the point in the trial court, [Steve] now
25
recognizes that the [E]state cannot be a party.” He now asserts that
California would have had jurisdiction over Donald during his lifetime and
Christine, in her capacity as executor of the Estate, “is a proper defendant in
an action on a claim against the [E]state.”
Respondents argue that we should not consider the issue given Steve’s
concession that he has raised it for the first time on appeal. (See Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 [“ ‘As a
general rule, theories not raised in the trial court cannot be asserted for the
first time on appeal.’ ”].) Respondents acknowledge that jurisdiction is a
question of law and that this court does have discretion to address a question
of law on undisputed facts that is raised for the first time on appeal.
(Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767; In re
Marriage of Priem (2013) 214 Cal.App.4th 505, 511 [appellate court has
discretion to consider merits of new arguments].) They contend, however,
that Steve’s argument is not based purely on undisputed facts and ask us to
decline to exercise our discretion to reach it.
Although Steve did not raise this exact argument in the trial court, he
did assert, in his supplemental opposition to the motion to quash, that the
Estate “is the successor entity that must answer for its decedent tortfeasor’s
liabilities and obligations that existed, or contingently existed, as of the
moment of Donald’s death,” and that the vast majority of conduct alleged in
the underlying complaint with respect to Donald occurred while Donald was
residing in California. There is also no dispute the complaint was filed
against Christine, individually and in her capacity as executor to the Estate.
Neither Respondents nor the trial court questioned whether the Estate, or
Christine as executor, was the appropriate party with respect to claims
arising from Donald’s conduct while he was still alive. Although neither
26
Respondents nor the trial court were obligated to refine Steve’s arguments for
him, Steve’s arguments in his supplemental opposition were at least
sufficient to put Respondents on notice of the basic nature of the issue. We
will therefore exercise our discretion to reach the merits.
Turning to the merits, Steve asserts California has general jurisdiction
over Christine as the executor of the Estate because California would have
had general jurisdiction over Donald but for his death. Because Steve did not
raise this argument in the trial court, neither the parties nor the court
directly addressed whether California would have had personal jurisdiction
over Donald. Steve now contends, without significant discussion or authority,
that California would have had general jurisdiction over Donald for three
reasons: 1) Donald had lived in Bonita for 16 years and was domiciled in
California; 2) Donald entered into a business relationship with Steve, a
California resident; and 3) Donald committed the acts that give rise to the
litigation while housebound in Bonita.
“For an individual, the paradigm forum for the exercise of general
jurisdiction is the individual’s domicile.” (Goodyear Dunlop Tires Operations,
S. A. v. Brown (2011) 564 U.S. 915, 924 (Goodyear).) Although domicile and
residence are sometimes used interchangeably, they are not the same. (See
Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 284.) Interpreting
the meaning of the term “ ‘residence’ ” as used in certain income tax statutes,
the court in Whittell explained, “ ‘domicile’ properly denotes the one location
with which for legal purposes a person is considered to have the most settled
and permanent connection, the place where he intends to remain and to
which, whenever he is absent, he has the intention of returning but which the
law may also assign to him constructively. Residence, on the other hand,
denotes any factual place of abode of some permanency, that is, more than a
27
mere temporary sojourn [citation]. While a person can have in law only one
domicile [citation], he may have several ‘residences’ for different purposes[.]”
(Ibid.; accord In re Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1258
[“While a person may, at any given time, have more than one residence, he or
she may have only one domicile at a time.”]; Briggs v. Superior Court (1947)
81 Cal.App.2d 240, 252 [distinguishing between domicile and residency in the
context of jurisdiction].)
Here, the evidence is not sufficient to establish Donald was domiciled in
California. At most, there is evidence that Donald spent an increasing
amount of time in the Bonita home as his health declined in the later years of
his life. However, there is also evidence to support Respondents’ contention
that Donald continued to maintain both his legal residence and his domicile
in Mexico. The complaint alleges Donald moved his “ ‘official’ residence” to
Tijuana in the 1970s and Donald’s will, executed in April 2017, states that he
is a legal resident of Mexico with his domicile in Tijuana. To the extent the
record is silent, or otherwise insufficient, to establish any necessary
jurisdictional fact, any such deficiency will be resolved in favor of the order
and against a finding of jurisdiction. (See Vons, supra, 14 Cal.4th at p. 449
[appellant has the burden to demonstrate facts sufficient to establish
jurisdiction in the trial court, and he also has the burden of proving error on
appeal]; Wolfe, supra, 217 Cal.App.3d at p. 546 [any conflicts in the evidence
must be resolved against appellant and in support of the trial court’s order
granting the motion to quash].) Resolving this conflict against Steve and in
favor of the trial court’s order, as we must (Wolfe, at p. 546), we conclude
Steve has not established that California would have had general jurisdiction
over Donald during his lifetime, based on domicile.
28
Absent domicile, Steve provides no substantive analysis or authority to
support his assertion that California had general jurisdiction over Donald.
The additional allegations he relies on—that Donald entered into a business
relationship with him, a California resident, and committed the acts giving
rise to the litigation while physically present in Bonita—are not the type of
wide-ranging, continuous, and systematic affiliations with the state
necessary to support a finding of general jurisdiction in the absence of
domicile. (See Goodyear, supra, 564 U.S. at p. 919 [a court may assert
general jurisdiction where the defendant’s “affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the
forum State”]; accord David L. v. Superior Court (2018) 29 Cal.App.5th 359,
366 [defendant’s business contacts in California “were not so continuous and
systematic as to render him ‘essentially at home’ in California”].) These
allegations, which relate specifically to the underlying litigation, are, instead,
relevant to “case-linked” or specific jurisdiction. (See Ford Motor, supra, 141
S.Ct. at p. 1024.) But Steve does not directly assert that California had
specific jurisdiction over Donald, and, again, we are not required to develop
his arguments for him and may treat the contention as waived. (See Berger,
supra, 128 Cal.App.4th at p. 1007.) Even if we did consider the argument, it
would fail for the same reasons already discussed with respect to Gama.
Donald’s conduct was directed, at most, at Steve, and not California as a
forum, and the effects are not tethered to California simply because Steve is
present in California.
Steve relies on Mitsui Manufacturers Bank v. Tucker (1984) 152
Cal.App.3d 428 (Mitsui) to assert there is jurisdiction over Christine as
executor of the Estate. Although the Mitsui court found California had
jurisdiction over the executor of her deceased husband’s estate who had
29
moved from California to Arizona, the case is inapposite. (Id. at p. 430.) The
deceased husband, Oral Tucker, lived in San Diego, operated a business in
San Diego, and took out a business loan from a bank in San Diego
approximately two months before his death. (Ibid.) Shortly after Tucker’s
death, his wife and the executor of his estate moved to Arizona. (Ibid.) After
an unsuccessful attempt at filing a creditor’s claim for the balance of the loan
in Arizona, the bank sued the wife in her representative capacity in
California. (Ibid.) The wife specially appeared to dispute personal
jurisdiction and the trial court granted her motion to quash service of
summons. (Ibid.)
The appellate court reversed the trial court’s order, concluding that
California had jurisdiction over the wife as administrator of the estate.
(Mitsui, supra, 152 Cal.App.3d at p. 432.) The court explained, “the modern
rule is: ‘An action may be maintained against a foreign executor or
administrator upon a claim against the decedent when the local law of the
forum authorizes suit in the state against the executor or administrator and
(a) suit could have been maintained within the state against the decedent
during his lifetime because of the existence of a basis of jurisdiction other
than mere physical presence.’ (Rest.2d Conf. of Laws, § 358.)” (Id. at p. 430.)
The court then concluded that “ ‘suit could have been maintained’ against
[Tucker], because he had ample minimum contacts with California: He
entered into a California contract, resided there, and ran a California
business.” (Ibid., italics added.)
The present case is easily distinguishable from Mitsui since Steve has
not shown, in the first instance, that California would have had personal
jurisdiction over Donald during his lifetime. Further, unlike Mitsui, the
underlying controversy does not concern a business or a business transaction
30
in California. Instead, Steve’s lawsuit concerns a partnership created with a
person who at the time was a Mexico resident domiciled in Mexico, to purchase
property in Mexico, which was to be held in trusts under Mexican law.8
IV.
It Would Not Be Reasonable for California to Exercise Jurisdiction over
Respondents
In sum, we conclude Steve has failed in his burden of demonstrating
that any respondent had adequate minimum contacts with California to
justify the exercise of personal jurisdiction over any of them. Our inquiry
could stop here. However, even if we were to assume Respondents had
sufficient minimum contacts with California, we would conclude, as the trial
court did, that the exercise of jurisdiction over them would not comport with
fair play and substantial justice. (See Burger King, supra, 471 U.S. at
pp. 477–478 [the “minimum requirements inherent in the concept of ‘fair play
and substantial justice’ may defeat the reasonableness of jurisdiction” even
where there is sufficient minimum contacts with the forum].)
In determining whether the assertion of personal jurisdiction comports
with “ ‘ fair play and substantial justice,’ ” courts must also consider “ ‘the
burden on the defendant,’ ‘the forum State’s interest in adjudicating the
dispute,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’
8 Steve asserts Respondents concede the allegations that Donald made
fraudulent misrepresentations to Steve in California “meet the criteria of a
basis other than mere physical presence” under Mitsui. We disagree with
Steve’s reading of Respondents’ statements, but we are not bound by any
purported concession in any event. Whether California would have had
personal jurisdiction over Donald is a matter of law that we review de novo.
(See Tun v. Wells Fargo Dealer Services, Inc. (2016) 5 Cal.App.5th 309, 327
[“we are not bound to follow the meaning of a statute (or the law) conceded by
a party”].)
31
‘the interstate judicial system’s interest in obtaining the most efficient
resolution of controversies,’ and the ‘shared interest of the several States in
furthering fundamental substantive social policies.’ ” (Burger King, supra,471 U.S. at pp. 476–477.)
Here, the trial court considered Respondents’ arguments with respect
to each of the relevant factors. It then stated: “There is a burden of requiring
defendants to travel from Mexico to California, especially now that the border
is essentially, if not completely, closed to travel [an apparent reference to the
effects of the ongoing COVID-19 pandemic]. Moreover, this case concerns
Mexican property under Mexican law and there is no interest for California
except that a California resident lost real estate in Mexico.” Focusing on just
one line from the court’s ruling, Steve asserts it would not be so burdensome
for Christine or Gama to cross the border because both have done so in the
past. He further asserts they may not even be required to do so because
California courts “are currently hearing cases remotely” due to the ongoing
COVID-19 pandemic. We are not persuaded.
First, the mere fact that Respondents have crossed the border in the
past does not mean it was not burdensome for them to do so then, or not
burdensome for them to do so now. We note that Christine lives in Chapala,
Jalisco, which is “more than 1,200 miles” from the United States/Mexico
border. Second, there is no guarantee the trial court would allow
Respondents to appear remotely throughout the case, or that Respondents
would choose to do so.
More importantly, though, the burden of appearing in court in San
Diego is but one factor that we must consider. Steve does not dispute the
trial court’s findings with respect to the remaining factors. At most, Steve
argues California has an interest in protecting its residents from fraud.
32
While that is generally a true statement, he fails to acknowledge the alleged
fraud in this case arises from an agreement he voluntarily entered into with
a person living in and domiciled in Mexico to buy and hold land in Mexico
under Mexican law. This is not a situation in which a non-resident defendant
“deliberately ‘reached out beyond’ ” his home to seek out a California resident
to entice him to enter into a business deal under fraudulent circumstances.
(Ford Motor, supra, 141 S.Ct. at pp. 1024−1025; compare Moncrief v. Clark
(2015) 238 Cal.App.4th 1000, 1007 [finding California had personal
jurisdiction over an Arizona attorney who targeted a California attorney
“with the specific purpose of inducing [the other attorney’s] client to finalize
the purchase of farm equipment”].) Rather, as the record demonstrates,
Steve reached out to a person living in Mexico and voluntarily entered into a
real estate transaction in Mexico governed by Mexican law.
Further, Steve acknowledges he has filed a separate action in Mexico
seeking to invalidate the will. Mexico has a far greater interest in resolving
questions of title to real property located in its territory and the efficacy of a
will executed under Mexican law. “The law of specific jurisdiction . . . seeks
to ensure that States with ‘little legitimate interest’ in a suit do not encroach
on States more affected by the controversy.” (Ford Motor, supra, 141 S.Ct. at
p. 1025.) The constitutional considerations of fair play and substantial
justice require courts to use restraint when determining jurisdictional
questions, and “[w]e are even more cautious in our application of the law of
personal jurisdiction when the nonresident defendant is from another nation
rather than another state.” (Automobile Antitrust Cases, supra, 135
Cal.App.4th at p. 109.) “When the defendant is from a foreign nation, a high
barrier of sovereignty tends to undermine the reasonableness of exercising
personal jurisdiction in this state.” (Ibid.)
33
Moreover, a second action in California would not be an efficient use of
judicial resources and could result in conflicting rulings. Steve argues the
two lawsuits are different because the Mexican action involves the validity of
the will while the present action involves the validity of the POAs executed in
California, and the complaint here asserts causes of action not available in
Mexico. He does not identify which causes of action are not available in
Mexico, nor does he provide any authority to support that assertion.9 Nor
does he explain why he cannot simply allege that the POAs are invalid in the
lawsuit that is already pending in Mexico. Finally, we disagree with the
characterization that the California lawsuit involves primarily the validity of
the POAs. In his cause of action for declaratory relief, Steve seeks a judicial
determination that Donald’s will was “invalid” and, consequently, the Estate
“shall be distributed according to the laws of intestate succession.”
For all of these reasons, we conclude the exercise of personal
jurisdiction in California over the foreign, non-resident Respondents would be
unreasonable and not comport with fair play and substantial justice.
9 In his declaration, attorney Viloria states, “[t]he Law of Baja California
does not provide specific remedies for or even recognize” causes of action for
Intentional Interference with Contractual Relationship or Intentional
Interference with Prospective Economic Advantage, but he also does not
provide any authority to support the assertion. Moreover, the only alleged
agreement is the “partnership” created to acquire and hold ownership in
Mexican real estate and Steve presents no evidence or authority indicating
any such partnership agreement would be governed by California, and not
Mexican law.
34
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
35