David L. v. Superior Court ( 2018 )

Filed 11/26/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID L., D073996
Petitioner,
v. (San Diego County
Super. Ct. No. 17FL010385E)
THE SUPERIOR COURT OF
SAN DIEGO COUNTY,
Respondent;
MARIANA C.,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate following denial of motion to quash
service of summons for lack of personal jurisdiction pursuant to Code of Civil Procedure
section 418.10. Frank L. Birchak, Judge. Petition granted.
Law Offices of Stephen Temko and Dennis Geis Temko for Petitioner.
No appearance for Respondent.
Legal Aid Society of San Diego, Maria Maranion Kraus, and Ali Puente-Douglass
for Real Party in Interest.
Consistent with the Due Process Clause of the Fourteenth Amendment to the
United States Constitution, may California exercise specific personal jurisdiction over a
nonresident in a paternity action where the mother and young child live in California and
conception occurred in another state? Mariana L. initiated a paternity and child support
action in San Diego County against David L., a Connecticut resident. 1 The trial court
denied David's motion to quash service, and he seeks writ review.
On the particular facts presented, we answer the question in the negative and issue
a writ of mandate to prevent the exercise of jurisdiction. David's knowledge that Mariana
resided in California and the foreseeability of California effects (a child) from their out-
of-state sexual intercourse are insufficient to establish the requisite minimum contacts.
(Walden v. Fiore (2014) 571 U.S. 277, 289 (Walden).) Specific jurisdiction must rest on
David's own suit-related contacts with California, not merely a plaintiff who lives here.
(Id. at pp. 288−289.) Those contacts must create a "substantial connection" with this state
for jurisdiction to lie. (Id. at p. 284.) Recognizing that the inquiry is fact-specific, on the
record before us the Walden standard was not met. California thus cannot exercise
personal jurisdiction over David in this paternity and child support action.
1 We refer to the parties by their first name and last initial to protect the privacy
interests of the child. (Cal. Rules of Court, rule 8.90(b)(1), (b)(10) & (b)(11).)
2
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, Mariana filed a petition in San Diego County to establish
parentage and seek child support, naming David as her one-month-old daughter's father.
The petition claimed the court had jurisdiction over David because Mariana and her
daughter lived in California. It attached an affidavit signed by Mariana's husband at the
time, who denied paternity. Mariana served the petition and summons on David by
certified mail to his address in Connecticut.
David made a special appearance to contest jurisdiction, filing a motion to quash
the service of summons under section 418.10 of the Code of Civil Procedure. In an
attached declaration, David stated he had never lived in California or owned property,
paid taxes, registered to vote, opened a bank account, or had a driver's license here. If the
child was his, it was conceived outside California. His actions did not force Mariana to
move to California; she already lived and intended to remain there when they met in
Nebraska nine months before her daughter's birth. Although David made a few visits to
California relating to his work as a concert promoter, he was "never in California except
for business," and Mariana's action had nothing to do with his business activities.
Mariana opposed the motion, noting David had made both personal and work-
related trips to California "numerous times." Her declaration explained that they had an
on-and-off intimate relationship spanning 17 years. They met in 2001 and were intimate
until 2009 in "various hotels in California as well as other states"; in 2003, Mariana got
pregnant and suffered a miscarriage. Mariana knew David was married, but she thought
3
he did not love his wife. She stopped seeing David in 2009 after learning that he and his
wife had a nine-year-old daughter.
Time passed. Mariana got married but resumed communicating with David in
2013 because her marriage was struggling and David stated he had gotten divorced.
They spoke by text message and phone until meeting casually in Las Vegas in 2015. In
April 2016 and August 2016, David made two business trips to California during which
he saw and spent the night with Mariana. She visited David in November 2016 in
Omaha, Nebraska during another of David's business trips. It was there that she
conceived her daughter. Although Mariana was married at the time, she had not been
intimate with her husband, and he signed an affidavit of nonpaternity.
As Mariana explained in her declaration, David knew she was a California
resident and would raise any child resulting from their relationship in California.
Mariana lived in California throughout her pregnancy, gave birth in this state, and
presently resides with her daughter in San Diego County. Because she does not work
outside the home, it would pose financial hardship to travel to Connecticut to establish
paternity and child support.
Mariana submitted a string of text messages that she exchanged with David from
April to November 2016. Consistent with her declaration, the messages indicated that
she met David in Palm Desert in April 2016 and in Anaheim in August 2016 during
David's business trips to the state. Text messages also corroborated Mariana's visit to see
David in Nebraska in November 2016. Two weeks after that visit Mariana announced
she was pregnant and that David was the father. She explained she did not expect David
4
to parent the child but would be seeking child support in California. Their last
communication was in January 2017, when David told her to communicate through
attorneys going forward.
David filed a motion to strike objecting to portions of Mariana's declaration. He
objected on relevance grounds to: (1) Mariana's discussion of how they met in 2001 and
the "on-off" nature of their 17-year relationship; (2) Mariana's 2003 miscarriage and prior
sexual acts in California that did not result in pregnancy; and (3) Mariana's claim that her
husband knew he was not the father and was not obligated to provide support. David
reiterated in his reply brief that he lacked sufficient contacts with California, explaining
his sporadic business trips were "completely unrelated to this paternity case."
At the hearing on David's motion, the court overruled David's objections and
accepted both parties' declarations into evidence. It explained that the 2003 miscarriage
was relevant to show "there was a period of time where sexual intercourse was occurring
in the state of California resulting in a conception even though the child was not carried
to term." 2 This showed "continuing contacts or sufficient contacts with the state on a
related issue" enabling the court to exercise jurisdiction under the broad catchall
provision in Family Code section 5700.201, subdivision (a)(8). 3 It continued the matter
2 The court did not explain how it determined that the 2003 pregnancy involved
conception in California; Mariana's declaration simply stated the parties had an intimate
relationship in California "as well as other states" between 2001 and 2009.
3 Further statutory references are to the Family Code unless otherwise indicated.
We explore section 5700.201 in the discussion section.
5
to decide whether the Family Code section 7540 presumption applied and whether David
would be ordered to take a paternity test, indicating Mariana's husband was a necessary
party. The court signed a Findings and Order after Hearing consistent with its oral ruling,
stating in relevant part:
"The Court finds that it has personal jurisdiction over [David] in that
there was a period of time where sexual intercourse was occurring in
the state of California resulting in a conception even though the child
was not carried to term, and this is sufficiently related and tied to the
issue here that California does, and [David] does, have sufficient
continuing contacts or sufficient contacts with the state of California
that are relevant to the litigation at issue for this Court to exercise
jurisdiction over him."
David seeks writ relief from the trial court's decision denying his motion to quash.
In May 2018, we issued an alternative writ and stayed proceedings in the trial court.
DISCUSSION
David argues California lacks personal jurisdiction over him and therefore cannot
adjudicate Mariana's paternity and child support claims. The trial court relied heavily on
Mariana's 2003 conception and miscarriage to find "sufficient contacts with the state on a
related issue" to establish personal jurisdiction. But as we explain, we conclude personal
jurisdiction is lacking under Walden, supra, 571 U.S. 277.
A
"In a proceeding to establish or enforce a support order or determine parentage of
a child," section 5700.201 identifies seven statutory bases for personal jurisdiction over a
nonresident. One of those bases applies when a child is conceived in this state
(§ 5700.201, subd. (a)(6)), but the parties agree that Mariana's daughter was not
6
conceived in California. In addition to the seven statutory options, section 5700.201
includes a catchall provision, recognizing "any other basis consistent with the
constitutions of this state and the United States for the exercise of personal jurisdiction."
(§ 5700.201, subd. (a)(8).) 4 The parties agree that this catchall is the only potential
statutory basis for the family court to assert personal jurisdiction over David.
Accordingly, our inquiry turns on the constitutional limits for personal jurisdiction.
The Fourteenth Amendment's Due Process Clause "constrains a State's authority to
bind a nonresident defendant to a judgment of its court." (Walden, supra, 571 U.S. at
p. 283.) These limits to a state's adjudicative power "principally protect the liberty of the
nonresident defendant—not the convenience of plaintiffs or third parties." (Id. at p. 284.)
A nonresident defendant must have "certain minimum contacts with [the forum] such that
the maintenance of the suit does not offend 'traditional notions of fair play and substantial
justice.' " (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316 (International
Shoe).)
"Personal jurisdiction may be either general or specific." (Vons, supra, 14 Cal.4th
at p. 445.) General jurisdiction "permits a court to assert jurisdiction over a defendant
based on a forum connection unrelated to the underlying suit (e.g., domicile)." (Walden,
supra, 571 U.S. at p. 283, fn. 6.) A defendant's forum contacts must be "so 'continuous
and systematic' as to render [the defendant] essentially at home in the forum state."
4 California's long-arm statute likewise permits courts to exercise personal
jurisdiction to the fullest extent permissible under the federal or state constitutions.
(Code Civ. Proc., § 410.10; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
Cal. 4th 434, 445 (Vons).)
7
(Daimler AG v. Bauman (2014) 571 U.S. 117, 139 (Daimler).) "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).) If "a defendant's contacts with the forum are so wide-ranging that they take
the place of physical presence in the forum" (Vons, at p. 446), " 'it is not necessary that
the specific cause of action alleged be connected with the defendant's business
relationship to the forum.' " (Id. at p. 445.)
Contrary to Mariana's claim, David's sporadic business contacts to promote
concerts over the years in California do not establish general jurisdiction. David's
contacts were not so continuous and systematic as to render him "essentially at home" in
California. (Daimler, supra, 571 U.S. at p. 139; Goodyear, supra, 564 U.S. at p. 919.)
Nor does Mariana explain how facts such as "the popularity of the artists [David]
represents and their large fan-base" are jurisdictionally relevant.
A nonresident defendant lacking sufficient contacts for general jurisdiction "still
may be subject to the specific jurisdiction of the forum." (Vons, supra, 14 Cal.4th at
p. 446.) Specific or " 'case-linked' " jurisdiction "focuses on the relationship among the
defendant, the forum, and the litigation." (Walden, supra, 571 U.S. at pp. 283–284 &
fn. 6.) In particular, "the defendant's suit-related conduct must create a substantial
connection with the forum state." (Id. at p. 287.)
There are three requirements for a court to exercise specific jurisdiction over a
nonresident defendant. First, the defendant must have purposefully availed himself or
herself of forum benefits or purposefully directed activities at forum residents. Second,
8
the controversy must relate to or arise out of the defendant's forum-related activities.
Third, the exercise of jurisdiction must comport with traditional notions of fair play and
substantial justice. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal. 4th 1054,
1062 (Snowney); Vons, supra, 14 Cal.4th at p. 447.) Only if the plaintiff makes the initial
showing on the first two requirements does the burden shift to the defendant to show that
exercising jurisdiction would be unreasonable. (Snowney, at p. 1062; Vons, at p. 449.)
"When there is conflicting evidence, the trial court's factual determinations are not
disturbed on appeal if supported by substantial evidence." (Vons, supra, 14 Cal.4th at
p. 449.) "When no conflict in the evidence exists, however, the question of jurisdiction is
purely one of law and the reviewing court engages in an independent review of the
record." (Ibid.)
The crux of Mariana's argument is that jurisdiction is proper because "David knew
that Mariana is a resident of California and if she were to conceive a child, she will raise
the child in California." This reasoning is based on the "effects" test often applied in
intentional tort cases, deriving principally from Calder v. Jones (1984) 465 U.S. 783
(Calder). To apply the effects test to this case, we must trace its evolution from Kulko v.
Superior Court (1978) 436 U.S. 84 (Kulko) to Calder to Walden and highlight
intervening cases interpreting each of these in turn.
B
Kulko addressed specific jurisdiction in the family law context. A California
resident sued her ex-husband, a New York resident, for increased child support. (Kulko,
supra, 436 U.S. at p. 88.) The California Supreme Court concluded there was personal
9
jurisdiction because the ex-husband had caused an "effect" in California by an act outside
the state—i.e., agreeing to send his daughter to live with her mother there. (Id. at p. 89.)
At the time, "[o]ne of the recognized bases for jurisdiction in California [arose] when the
defendant has caused an 'effect' in the state by an act or omission which occurs
elsewhere." (Sibley v. Superior Court (1976) 16 Cal. 3d 442, 445 (Sibley), citing
Quattrone v. Superior Court (1975) 44 Cal. App. 3d 296, 303 (Quattrone).)
The United States Supreme Court reversed. The ex-husband had not, by
permitting their daughter to move to California to live with her mother, "purposefully
availed" himself of California benefits and protections. (Kulko, supra, 436 U.S. at p. 94.)
Consequently, the California Supreme Court's reliance on the "effects" test was
misplaced. (Id. at p. 96.) Without addressing the validity of that test, Kulko explained
that even if it applied, jurisdiction would be unreasonable on the facts. The ex-husband
had not inflicted an injury on California residents or sought a commercial benefit in the
state—the child support action arose "not from the defendant's commercial transactions in
interstate commerce, but rather from his personal, domestic relations." (Id. at p. 97.)
A few months after Kulko, Bartlett v. Superior Court (1978) 86 Cal. App. 3d 72
addressed a question of personal jurisdiction on facts somewhat similar to those here. A
California resident conceived a child in Florida with a Florida resident who denied
parentage. (Id. at p. 74.) A California agency filed a petition to recoup child support and
welfare funds, and the alleged father moved to quash for lack of personal jurisdiction.
(Id. at pp. 74−75.) The trial court denied the motion to quash but the court of appeal
granted writ relief, concluding that California courts lacked personal jurisdiction over the
10
alleged father. In rejecting jurisdiction based on his causing a California resident to
become pregnant, Bartlett interpreted Kulko to hold that the effects test "is not applicable
to personal domestic relations." (Id. at p. 76.)
Later California cases have read Kulko more narrowly as holding merely that the
effects test would not apply to the facts of that particular case. (Kulko, supra, 436 U.S.
at pp. 96−97.) Accordingly, these decisions have applied the effects test to domestic
relations cases with different fact patterns. In In re Marriage of Lontos (1979) 89
Cal. App. 3d 61 (Lontos), for example, the court found personal jurisdiction in a child
support action over a Marine stationed in New Mexico based in part on the "effect" his
abandonment of his wife and three children had in compelling their return to California
and dependence on public aid. (Id. at pp. 71−72.) And in McGlothen v. Superior Court
(1981) 121 Cal. App. 3d 106 (McGlothen), on similar facts the court found jurisdiction
over a professional baseball player whose abandonment of his wife and children in
Louisiana produced an "effect in this state" upon their return home to California. (Id. at
p. 113.) Both courts distinguished Kulko, concluding the husbands' actions made the
exercise of jurisdiction in California reasonable. (Lontos, at p. 72; McGlothen, at
p. 113.) 5
5 In line with Lontos, supra, 89 Cal. App. 3d 61 and McGlothen, supra, 121
Cal. App. 3d 106, Family Code section 5700.201, subdivision (a)(5) recognizes personal
jurisdiction in California if "the child resides in this state as a result of the acts or
directives of the [nonresident] individual." The parties agree this basis does not apply
here. The daughter's "residence in California was not a result of David's acts or
directives," and "Mariana moved to California for reasons [having] nothing to do with
David."
11
The conclusion that Kulko necessarily forecloses application of the effects test to
domestic relations cases is the sole basis offered for Bartlett's holding that a Florida man
did not subject himself to California jurisdiction by causing a California resident to
become pregnant. (Bartlett, supra, 86 Cal.App.3d at p. 76.) 6 Absent further guidance
from the United States Supreme Court on the meaning of Kulko, we would likely be
forced to confront the implicit conflict between Bartlett on one hand and Lontos and
McGlothen on the other. But the intervening 40 years have produced two United States
Supreme Court opinions and numerous decisions from lower courts that inform our
analysis and, in the case of the high court precedent, dictate a result consistent with
Bartlett even if it does not follow similar reasoning.
C
In Calder, supra, 465 U.S. 783, the Supreme Court revisited the effects test it had
discussed in Kulko. Actress Shirley Jones sued a tabloid writer and editor for libel based
on an article published in the National Enquirer. The defendants, both Florida residents,
moved to quash service of process claiming California lacked personal jurisdiction. The
Supreme Court disagreed, relying on four factors to establish the requisite minimum
contacts: (1) defendants expressly aimed and intentionally directed conduct toward
California knowing Jones lived there; (2) their conduct was "calculated to cause injury";
6 Bartlett also concluded that specific jurisdiction could not rest on the defendant's
three trips to California with the Navy "for a business reason unrelated to his personal
association with [the child's mother]." (Bartlett, supra, 86 Cal.App.3d at pp. 75−76.) We
reach a similar conclusion, as discussed below.
12
(3) Jones experienced "effects" in California; and (4) California was the "focal point" of
their misconduct, given defendants' reliance on California sources, publication, and
readership. (Calder, at p. 791.)
In the years after Calder, courts " 'struggled somewhat with Calder's import,
recognizing that the case cannot stand for the broad proposition that a foreign act with
foreseeable effects in the forum state always gives rise to specific jurisdiction.' "
(Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 270 (Pavlovich).) During this time,
courts continued to rely on the Sibley/Quattrone effects test, which subjected a
nonresident to jurisdiction for intentionally causing effects in California unless doing so
would be unreasonable. (Jamshid-Negad v. Kessler (1993) 15 Cal. App. 4th 1704, 1708,
citing Sibley, supra, 16 Cal.3d at p. 446; Quattrone, supra, 44 Cal.App.3d at p. 305.)
Thus, for example, in Jamshid-Negad, Connecticut parents could be sued in California
for negligent supervision of their son because they acquiesced in his decision to attend a
California state university and paid his tuition, thereby "taking advantage of the state's
establishment of quality public higher education." (Jamshid-Negad, at p. 1709.)
In 2002, surveying federal appeals court decisions, the California Supreme Court
joined the prevailing view that "the Calder effects test 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, supra, 29
Cal.4th at pp. 271−273.) It cited with approval the express aiming requirement of the
United States Court of Appeals for the Third and Ninth Circuits. (Id. at p. 272; see IMO
Industries, Inc. v. Kiekert AG (3d Cir. 1998) 155 F.3d 254, 265–266 [requiring (1) an
13
intentional tort; (2) causing the brunt of the harm in the forum state; and (3) express
aiming of tortious conduct at the forum state]; Mavrix Photo, Inc. v. Brand Technologies,
Inc. (9th Cir. 2011) 647 F.3d 1218, 1228 [requiring (1) an intentional act; (2) expressly
aimed at the forum state; (3) that causes harm the defendant knew would likely be felt in
the forum state].)
Applying the express aiming or intentional targeting requirement, the Pavlovich
court concluded California could not exercise personal jurisdiction over an out-of-state
resident lacking California contacts based on source code he posted on a passive website
"accessible to any person with Internet access." (Pavlovich, supra, 29 Cal.4th at p. 273.)
The defendant's knowledge he might harm California industries was relevant but
insufficient on its own to establish express aiming at this state. (Id. at p. 278.)
D
Were Pavlovich still the applicable test, we might be inclined to affirm on the
basis that David expressly aimed his conduct at California, knowing his intentional
conduct might produce an effect (a child) in this forum. Unlike the defendant in
Pavlovich, David expressly aimed his conduct at a California resident rather than simply
knowing the effects of his conduct might be felt here. Nevertheless, we believe the
Supreme Court's 2014 decision in Walden, supra, 571 U.S. 277 compels a different
approach.
In Walden, professional gamblers from Nevada and California sued a Georgia
police officer in Nevada federal court for actions taken by that officer in Georgia. The
officer had seized a suitcase of cash carried by the gamblers while they were in transit
14
from Puerto Rico to Las Vegas. (Walden, supra, 571 U.S. at pp. 279−280.) At some
point, the officer allegedly drafted a false affidavit to show probable cause for forfeiture
of the funds. (Id. at pp. 280−281.) All the actions took place in Georgia; yet the Ninth
Circuit upheld personal jurisdiction on the basis he " 'expressly aimed' " his submission
of the false affidavit at Nevada by knowing it would affect persons with a " 'significant
connection' " to that state. (Id. at p. 282.)
The United States Supreme Court reversed in a unanimous decision, concluding
that due process did not permit the exercise of personal jurisdiction over the Georgia
officer. According to Walden, the Ninth Circuit erred by basing personal jurisdiction
over the officer on his knowledge of the travelers' strong forum connections and the
foreseeability of harm in Nevada. (Walden, supra, 571 U.S. at p. 289.) As the Court
explained,
"This approach to the 'minimum contacts' analysis impermissibly
allows a plaintiff's contacts with the defendant and forum to drive
the jurisdictional analysis. [The officer's] actions in Georgia did not
create sufficient contacts with Nevada simply because he allegedly
directed his conduct at plaintiffs whom he knew had Nevada
connections. Such reasoning improperly attributes a plaintiff's
forum connections to the defendant and makes those connections
'decisive' in the jurisdictional analysis. [Citation.] It also obscures
the reality that none of the petitioner's challenged conduct had
anything to do with Nevada itself." (Ibid.)
Although injury was felt in Nevada, "mere injury to a forum resident is not a
sufficient connection to the forum." (Walden, supra, 571 U.S. at p. 290.) "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." (Ibid.) The
15
Ninth Circuit erred by failing to look at the officer's "own contacts" with the forum, apart
from his knowledge of the travelers' connections there. (Id. at pp. 289−290.)
Walden reasoned that jurisdiction was proper in Calder because of "the various
contacts the defendants had created with California (and not just with the plaintiff) by
writing the allegedly libelous story." (Walden, supra, 571 U.S. at p. 287.) The tabloid
defendants relied on California sources to write the article and on wide circulation among
California readers. (Ibid.) And because reputational torts require publication to third
persons, "the defendants' intentional tort actually occurred in California." (Id. at p. 288.)
"In this way, the 'effects' caused by the defendants' article—i.e., the injury to the
plaintiff's reputation in the estimation of the California public—connected the defendants'
conduct to California, not just to a plaintiff who lived there." (Ibid.) While the court
focused on facts inherent to a reputational tort, Walden also seemed to reiterate Calder's
" 'focal point' " test, highlighting "the various facts that gave the article a California
focus." (Walden, at pp. 287–288.) 7
Walden emphasized two core principles underlying the "defendant-focused"
jurisdictional inquiry. First, a nonresident defendant's forum-connection "must arise out
of contacts that the 'defendant himself' creates with the forum State," not "contacts
between the plaintiff (or third parties) and the forum State." (Walden, supra, 571 U.S. at
7 At least one commentator has questioned Walden's seemingly "revisionist"
recharacterization of Calder. (Erbsen, Personal Jurisdiction Based on the Local Effects
of Intentional Misconduct (2015) 57 Wm. & Mary L.Rev. 385, 412 [although the
holdings in the two cases can be reconciled, "Walden nevertheless provides a revisionist
account of Calder's reasoning"].)
16
p. 284.) This is because "the 'minimum contacts' inquiry principally protects the liberty
of the nonresident defendant, not the interests of the plaintiff." (Id. at pp. 284, 290, fn. 9.)
Second, 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.) "[T]he 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., citing Burger King
Corp. v. Rudzewicz (1985) 471 U.S. 462, 478 (Burger King) and Kulko, supra, 436 U.S.
at p. 93.)
As Walden makes clear, "a defendant's relationship with a plaintiff or third party,
standing alone, is an insufficient basis for jurisdiction." (Walden, supra, 571 U.S. at
p. 286.) It is not enough "to rely on a defendant's 'random, fortuitous, or attenuated
contacts' or on the 'unilateral activity' of a plaintiff.' " (Ibid.) Instead, to find specific
jurisdiction, a court must look to the defendant's "own" suit-related contacts with the
forum to see if they create a "substantial connection with the forum State," not just "with
persons who reside there." (Id. at pp. 284–285, 289, italics added in second quote.)
Shortly after Walden was decided, Division Three of the Fourth Appellate District
considered whether it had jurisdiction under the effects test over an Illinois resident who
posted defamatory statements on his personal Facebook page about someone he knew
lived in California. (Burdick v. Superior Court (2015) 233 Cal. App. 4th 8, 13, 15
(Burdick).) The trial court found personal jurisdiction and denied the defendant's motion
to quash. Citing Walden, supra, 571 U.S. 277, the court of appeal reversed, deeming it
17
"necessary that the nonresident defendant not only intentionally post[ed] the statements
on the Facebook page, but that the defendant expressly aim[ed] or specifically direct[ed]
his or her intentional conduct at the forum, rather than at a plaintiff who live[d] there."
(Burdick, at p. 13, italics added.)
As the Burdick court explained, "Walden teaches that the correct jurisdictional
analysis focuses on (1) the defendant's contacts with the forum, not with the plaintiff, and
(2) whether those contacts create the relationship among the defendant, the forum, and
the litigation necessary to satisfy due process." (Burdick, supra, 233 Cal.App.4th at
pp. 23−24, internal quotations omitted.) In Burdick, "[t]he only conduct which might
connect [the nonresident] in a meaningful way with California was the allegedly
defamatory posting on his Facebook page," and that conduct did not create a substantial
connection with California even though he knew the posting would harm California
residents. (Id. at pp. 24−25.)
Although the California Supreme Court has not addressed the impact of Walden
on the Pavlovich effects test, California's test mirrors the Ninth Circuit's, which has
changed post-Walden. (Pavlovich, supra, 29 Cal.4th at pp. 272−273.) It is no longer
enough in the Ninth Circuit to base specific jurisdiction on a defendant's individualized
targeting of a plaintiff known to reside in the forum state. (Axiom Foods, Inc. v.
Acerchem International, Inc. (9th Cir. 2017) 874 F.3d 1064, 1070 (Axiom Foods).)
"Walden requires more." (Axiom Foods, at p. 1069.) The Ninth Circuit now looks "to the
defendant's 'own contacts' with the forum, not to the defendant's knowledge of a
plaintiff's connections there." (Id. at p. 1070.) Even if a defendant has individually
18
targeted conduct at a plaintiff he knows resides in the forum state, specific jurisdiction
now lies under the Ninth Circuit's effects test only if his suit-related conduct creates a
substantial connection with that state. (Id. at p. 1068, citing Walden, supra, 571 U.S. at
p. 284.) We believe that is the test we now must apply.
E
In this case, the only "suit-related conduct" tying David to California is his on-
and-off relationship with Mariana, a California resident. His business trips to California
as a concert promoter or personal visit to the Ronald Reagan Presidential Library are too
disconnected to the paternity action standing alone to be jurisdictionally relevant. (Judd
v. Superior Court (1976) 60 Cal. App. 3d 38, 44 [dissolution action did not arise out of
nonresident's alleged business contacts with the state]; see Walden, supra, 571 U.S. at
p. 283, fn. 6 [specific jurisdiction rests on a link between the forum and the controversy];
Goodyear, supra, 564 U.S. at p. 919 ["specific jurisdiction is confined to adjudication of
'issues deriving from, or connected with, the very controversy that establishes
jurisdiction' "].)
Nor do we find David's past contacts with Mariana in California jurisdictionally
relevant. Mariana's declared that she and David had sexual relations between 2001 and
2009 in "various hotels in California as well as other states." Contrary to the trial court's
finding, there is no nonspeculative evidence to suggest her 2003 pregnancy resulted from
"interactions in the state of California." In fact, there is no nonspeculative basis in the
record to gauge how much of their 2001 through 2009 relationship centered in California.
Even if there were, decade-old contacts are too remote in time to establish specific
19
jurisdiction in this paternity action. We consider "the contacts at the time of the
proceeding and not on whether past minimum contacts might suffice." (Muckle v.
Superior Court (2002) 102 Cal. App. 4th 218, 227 [Georgia resident's contacts with
California 12 years before the dissolution action were not relevant].)
Accordingly, we focus on David's California contacts that are reasonably
connected to Mariana's paternity and child support action. After a seven-year hiatus,
David and Mariana resumed an intimate relationship in 2016. David made a handful of
work-related trips to California that year; on two of these trips, he saw Mariana. In April
2016, David traveled to Palm Desert, where he met Mariana at a concert venue. He went
to Arizona afterwards and returned two days later, spending the next two nights with her
at a Los Angeles hotel. Four months later, in August 2016, they spent two nights
together at an Anaheim hotel. This amounted at most to three interactions in California
during two business trips four months apart. Two months after these California visits,
Mariana saw David in Nebraska and conceived a child.
To be sure, Mariana was a California resident and David knew that fact. David
exchanged phone calls and text messages with Mariana in California until shortly after
she became pregnant. Since her birth, Mariana's daughter has lived with her mother in
California. But to find specific jurisdiction, Walden instructs that Mariana and her
daughter "cannot be the only link[s] between the defendant and the forum." (Walden,
supra, 571 U.S. at p. 285.) It is not enough that David knew Mariana was a California
resident and reasonably knew the effects of any intercourse resulting in pregnancy would
necessarily be felt in California. (Id. at p. 289.) Simply directing conduct at a plaintiff
20
knowing that she has significant California connections does not satisfy the minimum
contacts inquiry. (Ibid.)
"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." (Walden, supra, 571 U.S. at p. 290.) For specific jurisdiction to exist, David's
"suit-related conduct" must have created a "substantial connection" with California apart
from Mariana's connections there. (Id. at p. 284; see Burdick, supra, 233 Cal.App.4th at
pp. 24−25; Axiom Foods, supra, 874 F.3d at p. 1070.) The record does not support that
jurisdictional finding. Apart from Mariana's significant connections to California,
David's suit-related conduct from his trips to California in April and August 2016 was not
"tethered to [this state] in any meaningful way." (Walden, supra, 571 U.S. at p. 290.)
Even if we view conception in Nebraska as connected to David's course of California
conduct, David had insufficient suit-related contacts with California to support the
exercise of jurisdiction. 8
8 California courts have traditionally required only a " 'substantial nexus or
connection between the defendant's forum activities and the plaintiff's claim.' "
(Snowney, supra, 35 Cal.4th at p. 1068, citing Vons, supra, 14 Cal.4th at p. 456.) Under
Snowney and Vons, " 'the intensity of forum contacts and the connection of the claim to
those contacts are inversely related' "; the more wide-ranging a defendant's contacts, the
more readily a nexus is shown. (Snowney, at p. 1068, citing Vons, at p. 452.)
Consequently, " '[a] claim need not arise directly from the defendant's forum contacts in
order to be sufficiently related to the contact to warrant the exercise of specific
jurisdiction.' " (Snowney, at p. 1068, citing Vons, at p. 452.)
21
In reaching our result, we do not mechanically apply Walden's directive to
distinguish a defendant's contacts "with the forum State itself" from his contacts "with
persons who reside there." (Walden, supra, 571 U.S. at p. 285.) As Walden recognizes,
"a defendant's contacts with the forum State may be intertwined with his transactions or
interactions with the plaintiff." (Id. at p. 286.) The problem is not that all of David's suit-
related contacts to California involve Mariana—they necessarily would. Burger King
found jurisdiction in Florida over Michigan franchisees whose sole connection to the
forum revolved around contract negotiations with the Florida corporation. (Burger King,
supra, 471 U.S. at pp. 479−481.) Similarly, Calder found jurisdiction where all of the
tabloid defendants' California contacts related in one way or another to their libelous
story about a California actress. (Calder, supra, 465 U.S. at pp. 788−790.) Instead, the
jurisdictional roadblock is that David has too few suit-related contacts with California to
Recently, the United States Supreme Court questioned California's " 'sliding scale
approach' " as "difficult to square with our precedents." (Bristol-Myers Squibb Co. v.
Superior Court of California, San Francisco County (2017) 137 S. Ct. 1773, 1781.) It
found no adequate link between the forum and nonresidents' claims against a drug
company and explained there must be "a connection between the forum and the specific
claims at issue." (Ibid.) Because the court did not address the strength of a causal link
required, state precedent repudiating a proximate cause requirement may remain viable.
(Snowney, supra, 35 Cal.4th at pp. 1067−1068, citing Vons, supra, 14 Cal.4th at
pp. 462−464; see also Vons, at p. 459 [rejecting claim that "only an injury caused by the
very activity that formed the defendant's forum contacts would give rise to specific
jurisdiction"].) Indeed, International Shoe simply defined the inquiry as whether a
defendant's "obligations arise out of or are connected with the activities within the state."
(International Shoe, supra, 326 U.S. at p. 319.) Later cases have stated jurisdiction is
proper when injuries either arise out of or relate to forum activities. (Vons, at p. 462
[collecting cases].) For purposes of our analysis, we assume without deciding that if the
relationship between David and Mariana reflected sufficient California contacts, the
paternity action could theoretically satisfy the nexus requirement even if conception
occurred in another state.
22
base jurisdiction on the resulting "effects" felt by Mariana. (Walden, at p. 290 [Georgia
officer's seizure of cash caused an injury not "tethered to Nevada in any meaningful
way," unlike Calder, which involved "broad publication of [a] forum-focused story . . . ."
(italics added)].)
All three of David's interactions with Mariana in California coincided with two
scheduled business trips to this state. There were other business and personal trips to
this state during which he did not see Mariana. The pregnancy resulted from a later
meeting in Nebraska. On these facts, David's "relationship with this state is tenuous at
best, and in fact would be almost nonexistent [as related to this paternity action] had
[Mariana] not chosen to reside here." (Modlin v. Superior Court (1986) 176 Cal. App. 3d
1176, 1181 [New Yorker's visits with daughter during three trips to California in four
years while attending medical conferences in this state did not support specific
jurisdiction in ex-wife's child support action]; see Walden, supra, 571 U.S. at p. 290 [the
harm was felt in Nevada "not because anything independently occurred there but because
Nevada is where respondents chose to be"].) We cannot say that David's "suit-related
conduct" creates "a substantial connection" with California, as required for specific
jurisdiction. (Walden, at p. 284.)
We caution that jurisdiction remains a fact-specific rather than "mechanical"
inquiry, turning on the "quality and nature" of a defendant's activities. (International
Shoe, supra, 326 U.S. at p. 319; Burger King, supra, 471 U.S. at pp. 485−486 & fn. 29.)
On the record before us, Mariana did not meet her initial burden to establish that David
had the requisite minimum contacts to justify haling him before a California court.
23
(Vons, supra, 14 Cal.4th at p. 449.) As a result, the burden never shifted to David to
demonstrate that California's exercise of jurisdiction would be unreasonable. (Ibid.)
Although we reach a similar jurisdictional result as Bartlett, supra, 86 Cal. App. 3d
72, we do so by applying Walden's reasoning to the facts before us. It is admittedly
disconcerting to force Mariana to travel to Connecticut to establish paternity and seek
child support when David knew all along she was a California resident and that any
pregnancy would have significant effects here. 9 As Mariana points out, it is reasonable
to expect that unprotected sexual intercourse might result in a child being conceived. The
net effect may be to create a substantial jurisdictional barrier that will only assist fathers
in shirking their responsibilities to their offspring. To this, Walden offers simply that due
process is principally concerned with "the liberty of the nonresident defendant—not the
convenience of plaintiffs or third parties." (Walden, supra, 571 U.S. at p. 284.) We feel
compelled by Walden to grant David's petition on the record before us. 10
9 As David conceded below, Mariana could have acquired specific jurisdiction
through personal service of the summons in this state. (Burnham v. Superior Court
(1990) 495 U.S. 604, 628.) But she instead effected service through certified mail in
Connecticut.
10 Given our result, we need not address David's arguments that: (1) the 2003
pregnancy and other Mariana-related contacts were too remote to the 2017 paternity
action to affect the jurisdictional inquiry; (2) as a matter of statutory interpretation the
place of conception during a prior pregnancy is jurisdictionally irrelevant under section
5700.201, subdivision (c)(8); and (3) jurisdiction was unreasonable because Mariana was
married, meaning another man was presumed to be the child's father (§ 7611, subd. (a)).
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DISPOSITION
Let a writ of mandate issue directing the respondent court to vacate its order
denying David's motion to quash the service of summons in Mariana's paternity and child
support action and to enter a new and different order granting the motion and quashing
the service of summons. The stay issued on May 24, 2018 will be vacated when the
opinion is final as to this court. In the interests of justice, each party shall
bear its own costs.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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