Buskirk v. Buskirk

Filed 8/14/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
WALTER VAN BUSKIRK III, B295648
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 18STPB07724)
ELLEN J. VAN BUSKIRK,
Individually and as Trustee, etc.,
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Paul T. Suzuki, Judge. Reversed and
remanded.
RMO, Scott E. Rahn, Sean D. Muntz, Matthew F.
Baker and David G. Greco for Plaintiff and Appellant.
Jeffer Mangels Butler & Mitchell, Mark Riera and
Talya Goldfinger for Defendant and Respondent Ellen J.
Van Buskirk.
Law Offices of Savin & Bursk, Bonnie Marie Bursk
and Lindsay Lupe Savin for Defendants and Respondents
Susan Howard and Patricia Schlener.
Gunderson Law Firm, Mark H. Gunderson and
Catherine A. Reichenberg for Defendant and Respondent
Charles Bluth.
____________________
For want of personal jurisdiction, the trial court dismissed
this family dispute over a trust. This was error, for the trust has
ample connections to California, as do all family members who
live elsewhere and who protest jurisdiction in California. We
reverse and remand this matter.
I
The central figure in this family dispute is respondent
Ellen Van Buskirk, who now is 92. For simplicity and clarity, we
refer to her as the mother.
The mother was married to Walter Van Buskirk, Jr., who
died in 2005. The mother was a lifelong California resident; the
couple had lived together in Santa Monica. Earlier in 2005, they
created a revocable living trust called “The VAN BUSKIRK
TRUST dated August 24, 2005” (Trust). They executed the Trust
in Los Angeles County and chose California law as the governing
law. After Walter Van Buskirk, Jr., died, the mother became the
sole trustor.
The mother also is the trustee of the Trust. Before 2017,
the Trust appointed the following people as successor trustees,
should the mother be unwilling or unable to act as trustee:
● Appellant Walter Van Buskirk III, is the mother’s son, and
we refer to him by this relationship. This son lives in
Santa Monica, California.
● Respondents Susan Howard and Patricia Schlener are
Mother’s twin daughters and the son’s twin sisters. We
2
refer to Howard and Schlener collectively as the daughters.
The daughters live in Idaho.
● Respondent Charles Bluth is the mother’s brother and
uncle to the daughters and the son. Bluth lives in Nevada.
The mother is the current beneficiary of the Trust. Before
2017, the Trust named the daughters, the son, and Elizabeth
Rakestraw (the mother’s granddaughter) as successor
beneficiaries.
The Trust was administered in California from 2005 to
2016. After the mother’s husband died in 2005, Bluth began to
help the mother—his sister—run the Trust. Bluth’s precise level
of involvement is disputed, as we will describe.
September 30, 2016 was a watershed for the family and its
Trust. What happened that day depends on who tells the story.
The son’s version goes like this. He is the only child to
have worked in the family real estate business. He spent time
caring for his parents “more than any other child” in the family.
He lived with and cared for his mother in their family home in
Santa Monica until a medical condition hospitalized her at
St. John’s Hospital in Santa Monica, which later released her to a
local rehabilitation facility. But on September 30, 2016, the son’s
twin sisters—the daughters—conspired to kidnap Mother from
that facility. One daughter and the other daughter’s child came
at night to remove their mother from the facility, against medical
advice, and to take her to Idaho, where the daughters live. The
other daughter and Bluth assisted them. The mother remains in
Idaho, isolated and under the undue influence of the daughters.
When the son tried to visit his mother there, the daughters “and
others acting in concert with them” have blocked his visits with
“threats of violence.” The mother’s actions since 2016 ostensibly
3
have cut the son out of the Trust and thus out of his inheritance.
The Trust sold some of its California properties at fire sale prices.
The son suspects these actions stem from his sisters’
manipulation and control of their mother. That is the son’s view
of events.
The daughters and the mother paint a different picture.
They say the son is a ne’er-do-well who neither went to college
nor gained marketable skills but just lived off the family’s wealth.
The mother fears her son’s anger management problem. When
she fell and got hurt, her son abused her by locking her away
without proper food or care, hoping to hasten her demise and his
inheritance. To escape him, the mother left the California
rehabilitation facility of her own free will. Although advanced in
years, the mother continues to make independent personal and
financial decisions, including the decisions to relocate
permanently to Idaho and to disinherit her son. All her property
transactions have been prudent and proper. The son’s allegations
are simply “wild.” That is the mother’s and the daughters’
account.
We cannot and need not resolve this family dispute. Our
task is to analyze the issue of personal jurisdiction in the face of
this ongoing factual conflict. We base our analysis only on
undisputed record facts.
The mother and the daughters claim the mother made
crucial changes to the Trust in 2016 and 2017. The mother
produced evidence she amended the Trust in these years to
remove her son and Rakestraw as beneficiaries and her son and
Bluth as successor trustees. In 2017, the mother registered the
Trust in Idaho. California law still governs the Trust, as the
mother and her daughters conceded at oral argument.
4
The Trust’s assets have changed since 2016. The Trust
formerly held interests in many real properties in California.
Then the Trust transferred most of these properties so that now
most of its assets—more than 40 real properties and all bank
accounts—are in Idaho.
Since moving to Idaho, the mother has filed four lawsuits in
California. She brought an unlawful detainer action against her
son to evict him from the former family home in Santa Monica.
She filed a 2017 partition action concerning land in Malibu. She
sued in 2018 to dissolve a partnership and to sell a Coachella
date farm the partnership owned. The Trust has interests in
both the Malibu and the Coachella properties. The son’s lawyers
also assert the mother filed a spousal property petition in
California. The mother filed all these actions in state court in
Los Angeles County.
The son opposed his mother’s recent real estate
transactions. He filed this lawsuit, arguing the transactions
violated the Trust’s interests and his interests as well. He
claimed the daughters and Bluth participated in these
transactions. The son sought an accounting and the removal of
the mother, the daughters, and Bluth as trustees.
On occasion, we refer to the mother, the daughters, and
Bluth collectively as Respondents.
The mother and daughters moved to quash the son’s
petition for lack of personal jurisdiction. They also sought
dismissal for lack of standing and for “mandatory” venue in
Idaho. Bluth joined the motions. No party brought a forum non
conveniens motion.
5
The son opposed the motions, relying on allegations in his
verified petition and on pleadings from other cases pending in
California involving some or all the parties.
The trial court ruled the son failed to establish
Respondents’ minimum contacts with California. The court also
assumed the case could move forward in Idaho and declined to
accept jurisdiction.
The son appealed, arguing the trial court’s personal
jurisdiction ruling was wrong. The mother and daughters filed
responsive briefs that blend concepts of venue, standing, and
jurisdiction. Bluth joined this briefing. No party appealed any
determination regarding standing or venue. The trial court’s
ruling on personal jurisdiction is the only matter before us.
II
The mother incorrectly argues the trial court’s order is a
non-appealable denial of an accounting. In fact, the order
granted the motions to quash and dismissed the case without
prejudice. That order is appealable. (See Code Civ. Proc.,
§ 904.1, subd. (a)(3); see also Prob. Code, § 1000, subd. (a) [rules
for civil actions generally apply in probate matters].) We treat
this matter as the son’s appeal and not as an extraordinary writ.
III
We review personal jurisdiction law.
When a defendant moves to quash service for lack of
personal jurisdiction, the plaintiff must establish by a
preponderance of the evidence the facts justifying the exercise of
jurisdiction. The burden then shifts to the defendant to
demonstrate exercising jurisdiction would be unreasonable.
(Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019)
31 Cal. App. 5th 543, 553.)
6
We draw all reasonable inferences in support of the trial
court’s order. (Betz v. Pankow (1993) 16 Cal. App. 4th 919, 923.)
When the evidence conflicts, we defer to the trial court’s factual
findings when substantial evidence supports them. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 449
(Vons), abrogated on other grounds by Bristol-Myers Squibb v.
Superior Court (2017) ___ U.S. ___, ___ [137 S. Ct. 1773, 1781]
(Bristol-Myers).) When evidence does not conflict, we
independently review both the record and the trial court’s
application of law to facts. (Vons, at p. 449.)
Among other findings, the trial court specifically found
most of the Trust properties currently are in Idaho, the son is no
longer a Trust beneficiary, and the mother has moved to Idaho.
We accept those factual findings and do not question them.
As matters of state law, personal jurisdiction rules are the
same for civil and trust proceedings. (See Prob. Code, § 17004
[“The court may exercise jurisdiction in proceedings under this
division on any basis permitted by Section 410.10 of the Code of
Civil Procedure.”].) California courts may exercise jurisdiction to
determine matters concerning trust property located in
California—particularly land—even if the trust is administered
elsewhere. (Cal. Law Revision Com. com., 54A pt. 1 West’s Ann.
Prob. Code (2011 ed.) foll. § 17004, p. 306.)
Also as a matter of state law, California courts may
exercise jurisdiction on any basis consistent with the state or
federal Constitutions. (Code Civ. Proc., § 410.10.)
Because state law in this field stretches to the limits set by
federal law, state law here incorporates federal law. California
state courts cannot extend the reach of their personal jurisdiction
beyond federal limits. (E.g., Bristol-Myers, supra, 137 S.Ct. at
7
p. 1779.) We focus on the defendants’ relationship to the forum
state when assessing personal jurisdiction. (Ibid.) Jurisdiction is
proper if a defendant has minimum contacts with the state such
that the lawsuit does not offend traditional notions of fair play
and substantial justice. (Daimler AG v. Bauman (2014) 571 U.S.
117, 126.)
Personal jurisdiction can be all-purpose (also called
“general”) or case-linked (also called “specific”). (Bristol-Myers,
supra, 137 S.Ct. at pp. 1779–1780.) The parties limit their focus
to case-linked jurisdiction. We do too. With case-linked
jurisdiction, the court may adjudicate only those disputes relating
to defendants’ contacts with the forum. (Id. at p. 1780.)
A three-part test governs case-linked jurisdiction. With our
emphasis, case-linked jurisdiction is proper when:
(1) defendants have purposefully availed themselves of
forum benefits;
(2) the controversy relates to the defendants’ 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.)
IV
The trial court had case-linked personal jurisdiction over
the mother, the daughters, and Bluth. All four have been deeply
involved with this Trust, which is a stronghold of this family’s
wealth. The Trust originated and was administered in
California. It is governed by California law. It holds interests in
California real estate. The mother, daughters, and Bluth claim
the mother has moved the Trust to Idaho and has cut all ties to
8
California, but the propriety and effectiveness of that effort is the
focus of this California lawsuit.
A
The first prong of the three-part test is “purposeful
availment”: have defendants purposefully availed themselves of
forum benefits? We consider whether the defendants’ conduct
connects them to the forum in a meaningful way. (Walden v.
Fiore (2014) 571 U.S. 277, 290.) Defendants purposefully avail
themselves of a forum’s benefits if they intentionally direct their
activities at a forum such that, by virtue of the benefit the
defendants receive, they should reasonably expect to be subject to
jurisdiction there. (Burger King Corp. v. Rudzewicz (1985) 471
U.S. 462, 475–476 (Burger King).) By focusing on the defendants’
reasonable expectations, this requirement ensures defendants
will not be haled into a jurisdiction solely because of fortuitous or
attenuated contacts or because of the unilateral activity of
another party. (Id. at p. 475.)
The mother, the daughters, and Bluth intentionally
connected with California for their own benefit. Their choices
overwhelmingly satisfy the purposeful availment prong.
The mother’s acceptance of the trusteeship and trust
benefits connected her to California. The mother is the central
living figure in this Trust. As a lifelong Californian, she helped
establish the Trust here in 2005. She and her husband chose
California law to govern it. Her Trust held and continues to hold
interests in California real estate. (See Khan v. Superior Court
(1988) 204 Cal. App. 3d 1168, 1179 [one who claims an interest in
property located in California generally expects to benefit from
the state’s protection of this interest].)
9
Since leaving California, the mother has filed four lawsuits
in California state courts. Some of these lawsuits involve Trust
property.
Since leaving California, the mother has engaged in
transactions aimed at extinguishing the Trust’s interests in this
California real estate. The fact is undisputed that these
transactional efforts occurred, as is the mother’s ostensible role in
them. That is what counts: the mother (or someone in her name)
has been transacting about land in California.
We note the sharp disagreements about the transparency,
wisdom, and effectiveness of these California land deals. The
mother says she truly and fully was the one in charge,
notwithstanding her age, and her deals were proper, effective,
and wise. On the other hand, her son says his sisters are
Rasputins who have taken over and engaged in illegal follies.
The trial court took no view on this blazing family dispute.
Neither do we. It does not affect our jurisdictional analysis.
In sum, the mother has been a longtime California
resident, a California property owner, a California trust creator
and participant, and a California plaintiff. The mother
purposefully availed herself of this state’s benefits, beyond
question.
The daughters also have ample California connections.
They are successor beneficiaries and successor trustees of the
Trust, which originated in California, which is governed by
California law, and which has owned and still owns California
real estate. The daughters participated in Trust transactions,
according to the son’s verified petition. The daughters do not
deny some level of involvement: their declarations give details
about some of the transactions and maintain the transactions
10
were “done correctly.” There is no dispute the daughters or their
agents physically came to the California rehabilitation facility to
get their mother and to move her to Idaho, which triggered the
Trust changes at issue. The daughters have purposely availed
themselves of California’s benefits.
Again we note the family dispute that does not affect our
analysis. The son says his sisters and their agents kidnapped
their mother. The daughters and (ostensibly) the mother say the
mother’s exit was a voluntary escape and indeed a rescue that
saved the mother from a scary and abusive son. The trial court
made no finding about why the mother left California for Idaho.
Neither do we. For our jurisdictional analysis, the key point is
California was the travel destination for the daughters and their
agents. They chose to come to the state to accomplish results
important to them—results that related to the dispute over
control over the family Trust.
The same holds true for Bluth. Whatever the exact extent
and duration of his involvement, Bluth had some role in
managing the California Trust, as we will discuss. Bluth also
participated in the Trust’s real estate transactions, according to
the son’s verified petition. Bluth assisted in moving his sister
from California to Idaho, which was the event that changed
everything about the Trust’s operation. Bluth’s involvement with
the Trust shows he purposively availed himself of California’s
benefits. Bluth wanted his say in family affairs, including the
Trust. These family affairs have been, and continue to be, linked
to California.
This case differs from a trust dispute decided in the
landmark case of Hanson v. Denckla (1958) 357 U.S. 235. There,
a Pennsylvania resident created a trust in Delaware and named
11
Wilmington Trust Co., of Wilmington, Delaware as the trustee.
(Id. at p. 238.) The settlor moved to Florida, where she exercised
her power of appointment and eventually died. (Id. at p. 239.)
Individuals who stood to benefit from the settlor’s will but not the
trust contested the validity of the trust and sued the trustee and
others in Florida, where they lived. (Id. at pp. 240–242, 247,
fn. 16.) The Supreme Court found the Delaware trustee lacked
minimum contacts with Florida to support personal jurisdiction.
(Id. at p. 251.) Wilmington Trust Co. had no office in Florida. It
did not solicit or do business in Florida. The trust assets were
not in Florida. They had never been administered there. (Ibid.)
The settlor had moved to Florida and then exercised her power of
appointment. And Wilmington Trust Co. had remitted trust
income to her there. But these acts were not enough to establish
personal jurisdiction over Wilmington Trust Co. (Id. at pp. 252,
254.) “The unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the
requirement of contact with the forum State.” (Id. at p. 253.) For
purposes of personal jurisdiction, the acts of the defendant
trustee mattered, and these were insufficient to support
jurisdiction. (Id. at p. 254.)
Unlike the trust in Hanson, the trust here was embedded
in California from the beginning. It continues to own California
property and to be governed by California law. And the mother,
the daughters, and Bluth have all connected themselves to
California, as we have explained. In each way they departed
from the parochial insularity of the Wilmington Trust Co.
Respondents incorrectly tell us the son supplied no
evidence to support case-linked jurisdiction. They say his verified
12
petition and allegations made on information and belief were
insufficient to defeat a motion to quash.
These arguments are contrary to precedent. The mother
cites ViaView, Inc. v. Retzlaff (2016) 1 Cal. App. 5th 198, but this
case refutes Mother’s argument. (Id. at p. 217 [“Generally, a
properly verified complaint—or in this case a properly verified
petition—may be treated as a declaration or affidavit.”].)
The son verified his petition, thus converting it into the
functional equivalent of a declaration like the ones the mother
and her daughters have filed for themselves.
The mother also cites Strauch v. Eyring (1994)
30 Cal. App. 4th 181, but that holding is consistent with ViaView,
for the pleadings in Strauch were not verified. The holding in
Strauch does not favor the mother.
Strauch does contain a dictum the mother quotes, but as
support for its dictum the Strauch court cited an outdated
treatise. The relevant portion from the current treatise defeats
the mother’s argument: “Jurisdictional facts must be proved by
admissible evidence. This generally requires declarations by
competent witnesses. A properly verified complaint may be
treated as a declaration for this purpose.” (Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2020) ¶ 3:387, italics added.)
The mother made only one specific objection in the trial
court, which was to paragraph 20 of the son’s verified
petition. (Cf. Evid. Code, § 353, subd. (a); Assem. Com. on
Judiciary, com. on Assem. Bill No. 333 (1965 Reg. Sess.)
reprinted at 29B pt. 1A West’s Ann. Evid. Code (2011 ed.) foll.
§ 353, pp. 598-599 [objections must specify the grounds for
objection; general objections are insufficient].) Paragraph 20
13
asserted Bluth and the daughters had managed the Trust since
the mother moved to Idaho, and Bluth resigned as a trustee in
2017, leaving the daughters in sole control. The mother objected
to the son’s statement Bluth was acting as trustee and the
daughters were acting as cotrustees. This objection extended to
Bluth’s 2017 resignation.
The mother’s objection in the trial court was
insufficient. She did not object to paragraphs 16 through 19 of
the son’s petition. Nor did she object to exhibits B and C to the
petition, which these paragraphs authenticated. This verified
testimony established Bluth played a major role in managing the
Trust for the better part of a decade. Nor did the mother object to
paragraphs 4, 22, and 23 of the petition, which asserted the
daughters both were Trust beneficiaries and had acted as its
trustees.
The trial court made no findings on these issues. The
material in the son’s verified petition to which there were no
proper objections is in the record. The son’s ample evidentiary
showing countered the motion to quash.
At oral argument, the mother’s counsel argued we are
limited to the facts the parties and the trial court cite and we are
unable to consider undisputed evidence in the record. This view
is contrary to the law. (See Vons, supra, 14 Cal.4th at p. 449.)
The mother also argues the trial court lacked jurisdiction
over her because she moved to Idaho before she began selling the
California property. She thus argues any allegedly wrongful acts
took place out of state. Similarly, the daughters say they have
lived in Idaho the whole time and have had no contacts with
California.
14
These arguments fail. A defendant need not physically
enter California at all to be subject to personal jurisdiction here.
(Halyard Health, Inc. v. Kimberly-Clark Corp. (2019)
43 Cal. App. 5th 1062, 1075.) Nor can the mother undo her
lifelong California contacts by moving to a new state. No matter
where they now live, Respondents’ activities have involved a
trust that was created and managed in California, that is
governed by California law, and that owned—and still owns—
California real property. Respondents have purposefully availed
themselves of the California forum.
B
Next we tackle the second prong about “relatedness”:
whether the son’s claims relate to Respondents’ contacts with
California. We look for a substantial connection between
Respondents’ forum activities and the son’s claims. (Vons, supra,
14 Cal.4th at pp. 452, 456.)
We need not look far.
The son’s claims relate to Respondents’ contacts.
Respondents are connected to California through the Trust,
which is the topic of the son’s suit. His lawsuit asserts his
mother, her daughters, and Bluth harmed him and the Trust by
engaging in below-market California land deals. The son also
argues the date farm transaction showed the mother created an
impermissible conflict of interest. The son claims these
transactions rendered Respondents unfit to serve as trustees.
His lawsuit seeks appointment of a professional fiduciary as
trustee and an accounting. The son alleges he asked for an
accounting but Respondents have refused to supply one.
The son’s showing satisfies prong two of the test.
15
C
We finally take up prong three: is exercising jurisdiction
here fair?
In assessing fairness, we consider the burden on the
defendants, California’s interests in hearing this dispute, the
plaintiff’s interest in obtaining convenient and effective relief,
judicial economy, and the states’ shared interest in furthering
fundamental substantive social policies. (Burger King, supra,
471 U.S. at p. 477; Vons, supra, 14 Cal.4th at p. 448.) To defeat
jurisdiction, the defendant must present a compelling case that
exercising jurisdiction would be unreasonable. (Burger King,
supra, at p. 477; Vons, supra, at p. 476.)
Respondents have not met this burden.
Respondents argue as follows. The mother is aged.
Litigation with her son has taken a toll on her health, she has
certain health issues about which we lack details, and it is
difficult for her to travel. Mother has lived in Idaho since 2016
and intends to remain there indefinitely. She has cut most ties
with California. Now, most of the Trust property is in Idaho, and
the Trust is registered there. Witnesses concerning the mother’s
health and competence are in Idaho. The daughters and Bluth
live out-of-state. Daughter Howard has been undergoing cancer
treatment in Idaho.
Respondents also surmise there are apt to be few
documents in California (apart from documents the son took) and
few witnesses in California other than the son himself. They
assert information about recent Trust purchases is in Idaho.
Without explaining why, they also imply it would be unfair and
absurd to have a California professional trustee managing Idaho
assets.
16
The son asks us to consider his perspective. He is a
California resident. California trustors established the Trust in
California to be governed by California law. The events at the
heart of this dispute—the sale and attempted sale of Trust
property in California—were consummated in California.
Witnesses and documents regarding these events are in
California. Litigating in California is not burdensome, as the
mother has demonstrated with her numerous lawsuits in
Los Angeles. The mother cannot be too infirm to defend a lawsuit
here because she swears she still makes her business and
financial decisions independently. She has been a serial
California plaintiff.
It is fair to exercise jurisdiction here. As a resident of
California, the son has a valid interest in obtaining relief in
California for harm he claims from the sale of property in
California. When it suited the mother’s purposes, she repeatedly
has chosen to litigate in California from Idaho. Undisputedly,
the daughters or their agents came to California to move the
mother to Idaho. There is an unresolved issue about why they
did this: was it a rescue or a kidnapping? We take no view on
that unresolved issue. Neither did the trial court. But the
daughters’ undisputed decision physically to come to California,
either personally or via agent, is significant. It is fair they return
to California to defend the actions following in the wake of the
mother’s move. Bluth has been a successor trustee from the start
of this Trust and has managed its affairs for his sister, who lived
in California for 89 years. Bluth’s connection with California is
deep and wide.
Respondents emphasize the mother’s age and the one
daughter’s cancer. We have no doubt the trial court will be
17
sensitive to the health concerns of all involved and will make
suitable arrangements. When advisable, trial judges regularly
make accommodations of all sorts. At this moment, lawyers,
parties, and courts are discovering the many ways technology can
reduce or eliminate the burdens of travel. Moreover, at oral
argument, the son’s counsel committed on the record, going
forward, to enter reasonable and loving stipulations to minimize
the burdens of this litigation on his aged mother and his suffering
sister. This prospective and enforceable flexibility and
compassion softens the burdens of age and illness in this context.
California is a fair place to resolve this family dispute
about their Trust.
V
Respondents make arguments concerning Probate Code
sections 17002 and 17005 that are unavailing. These state
statutes do not pertain to the threshold constitutional issue of
minimum contacts. They are venue statutes.
Venue is separate from personal jurisdiction. This appeal
concerns only personal jurisdiction. Accordingly, Probate Code
sections 17002 and 17005 are inapplicable.
18
DISPOSITION
We reverse the trial court’s order and remand for further
proceedings. We award costs to Walter Van Buskirk III, and
grant the request for judicial notice.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
19