Filed 4/10/12 Richardson v. Matin CA1/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
BENNING A.
RICHARDSON et al.,
Plaintiffs and Appellants,
v.
BARBARA
MATIN et al.,
Defendants and Respondents.
A132259
(San
Francisco County
Super. Ct.
No. CGC-10-500510)
Benning
and Christopher Richardson (Richardsons)
appeal from orders granting the motions of defendants, Barbara Matin (Matin)
and Wendell McArthur (McArthur), to quash service of summons for lack of
assert three grounds for reversal. They
argue that Matin and McArthur had the necessary minimum contacts to warrant
personal jurisdiction over them in
that the trial court’s consideration of the motions to quash was beyond its
authority because a motion to transfer was also pending; and that Matin and
McArthur waived their personal jurisdiction defense through other actions taken
in the proceedings. We conclude that the
trial court properly found no constitutionally sufficient basis for California
to exercise jurisdiction over either Matin or McArthur. Thus, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In June
2010, the Richardsons filed a complaint in
Francisco Superior Court alleging, among other causes of action,
property, breach of fiduciary duty, and constructive fraud against eleven
defendants including: Bank of New York Mellon Corporation; BNY Mellon
Shareowner Services; Rabobank; VIB Corporation; Ronald Blok; Andrew, Morris
& Buttery, PLC; Kevin Morris; Barbara Matin; Marlene Weeks; Wendell
McArthur; and William Vetter, Jr. This
appeal involves only Matin and McArthur.
The
Richardsons, residents of
Obispo County, own shares of stock in Mid-State Bancshares. This case arises out of prior litigation when
a preliminary injunction was entered by the Superior
Court of San
Luis Obispo County
preventing the Richardsons from
selling, transferring, or otherwise dealing with stock or other securities in
Mid-State Bancshares. In May 2007,
Christopher Richardson received a letter from Mellon Investor Services (MIS), a
transfer agent, concerning redemption of the Mid-State Bancshares stocks
following its acquisition by VIB Corporation.
After telephone discussions with unknown employees at MIS concerning a
hold on his account due to the earlier preliminary injunction, Christopher
issued a written request to remove the hold so he could redeem his
securities. In June 2007, Christopher
followed up his written request with a phone call to MIS inquiring about the
status of his disbursement. He was told
by shareholder representative Wendell McArthur that the prior court order
prevented MIS from redeeming the securities, and that a check would not be
issued without court authorization.
McArthur followed up his response to Christopher’s telephone inquiry
with a letter explaining that a court order prevented release or redemption of
the Mid-State shares.
Wendell
McArthur does not live in California,
has never traveled to California,
has no business interest in California,
and does not own any property in California. He works for MIS in New
Jersey. As
part of his job duties as a shareholder representative, he responds to written
and telephone inquiries from shareholders throughout the world. McArthur is not authorized to decide whether
to approve or deny a shareholder’s redemption request. His only function is to communicate decisions
made by others at MIS to shareholders.
Other than receiving a salary from MIS, McArthur received no benefit
from his communication with Christopher Richardson in June 2007. McArthur had no personal knowledge of the
prior litigation that led to the earlier court order.
Barbara
Matin has never had any involvement or contact with either Benning or
Christopher Richardson. Matin does not
live in California, has no
business interest in California,
and does not own any property in California. From June 2000 until May 2004 she was
employed by MIS as a paralegal. Part of
her job duties included dealing with stock transfers subject to restrictions
and blocking orders. She had no
authority to settle any lawsuits brought against MIS. In August 2003, MIS’s outside counsel, Kevin
Morris, requested any court orders regarding the Mid-State Bancshares stock at
issue in the prior case be sent to Matin.
In May 2004, Matin left MIS, and ever since has had no responsibility
for transfers of stock subject to restriction.
On October 15, 2010, in response to the
Richardsons’ complaint, Matin and
McArthur both moved to quash service of summons for lack of
Matin and McArthur, moved to transfer venue to San
Luis Obispo County. The following week, on October 21, a case
management statement was filed jointly on behalf of Bank of New York Mellon
Corporation, BNY Mellon Shareowner Services, Rabobank, VIB Corporation, Ronald
Blok, Marlene Weeks, and respondents Matin and McArthur. The case management statement notes that
Matin and McArthur filed motions to quash service of summons, and the other
defendants filed motions for transfer of venue.
The defendants requested another case management conference be set after
90 days to allow for responsive pleadings following rulings on the pending
motions.
In response
to Matin’s and McArthur’s motions to quash, the Richardsons asserted that each
defendant’s acts caused effects in California, which were significant enough to
give rise to personal jurisdiction.
Despite the timely filing of their memoranda of points and authorities,
the Richardsons did not appear for
the hearing and the court adopted its tentative ruling granting the
The Richardsons
timely appeal from the orders quashing service of process upon Matin and
McArthur for lack of personal jurisdiction.
DISCUSSION
When a
defendant moves to quash service of process on jurisdictional grounds, the
plaintiff has the initial burden of proving, by a preponderance of the evidence,
facts warranting the court’s exercise of jurisdiction. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (
If the plaintiff meets this burden, the burden shifts to the defendant
to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) When evidence is conflicting, we will not set
aside the trial court’s factual determinations so long as they are supported by
substantial evidence. (
When there is no conflict in the evidence, however, the question of
jurisdiction is purely one of law and we engage in an independent review of the
record. (Ibid.)
It is well
settled that “the state has a legitimate interest as sovereign in providing its
residents with protection from injuries caused by nonresidents and with a forum
in which to seek redress.” (
Accordingly, “California’s long-arm statute authorizes California courts
to exercise jurisdiction on any basis not inconsistent with the Constitution of
the United
States or the Constitution of California.
(Code Civ. Proc., § 410.10.[
jurisdiction over a nonresident defendant who has not been served with process
within the state comports with the requirements of the due process clause of
the federal Constitution if the defendant has such minimum contacts with the
[forum] state that the assertion of jurisdiction does not violate
‘ “traditional notions of fair play and substantial justice.” ’ (
(1945) 326 U.S. 310, 316; . . . see also Burnham v. Superior Court (1990) 495 U.S. 604, 618-19.)” (Vons,
supra, 14 Cal.4th at pp.
444-45.) Under this “minimum contacts”
standard, it is essential that the nature and quality of the defendant’s
activity is such that it would be “ ‘ “reasonable” and
“fair” ’ ” to require him to defend in that State. (Pavlovich
v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich), quoting Kulko v.
California Superior Court (1978) 436 U.S. 84, 92.)
Courts have
identified two methods to establish personal jurisdiction — general and
specific jurisdiction. (
In this matter, plaintiffs do not contend that general jurisdiction
exists over either defendant. We
therefore will only address whether specific jurisdiction exists over Matin and
McArthur.
Jurisdiction.
In
determining whether specific jurisdiction exists, courts look to the
relationship among the defendant, the forum, and the litigation. (Helicopteros
Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414-15;
“A court may exercise specific jurisdiction over a nonresident defendant
only if: (1) ‘ the defendant has purposefully availed himself or herself of
forum benefits’ (Vons,
“controversy is related to or ‘arises out of’ [the] defendant’s contacts with
the forum” ’ (ibid., quoting
jurisdiction would comport with ‘fair play and substantial
justice’ ” ’ (Vons,
471 U.S. 462, 472-73.)” (
Contacts
with the forum state must be assessed individually and should not be judged
according to an individual’s employer’s activities.
v. Jones (1984) 465 U.S. 783, 790.)
Additionally, it is the quality, not the quantity, of the contacts that
is the determinative issue in evaluating purposeful availment. (McGee
v. International Life Ins. Co. (1957) 355 U.S. 220, 223 [upholding
jurisdiction over a Texas insurance company that never solicited or did
business in California apart from the single policy at issue]; cf.
(2009) 173 Cal.App.4th 1305, 1321 [declining to exercise jurisdiction where
insurance company did not solicit business or purposefully avail itself of the
benefits or protections of California through accepting premium payments from
insured clients who unilaterally moved to California.) A single contact may qualify as purposeful
availment to satisfy part of the specific jurisdiction analysis, but unilateral
activity by one party may not expose the other to jurisdiction.
There is
simply no basis to conclude that either Matin or MacArthur purposely availed
themselves of the benefits of California’s laws, that any part of this
controversy arises out of their contact with this state, or that it would be
fair to require them to answer and defend this action. Each of them is a New Jersey-based employee
of a corporate defendant. Neither had
any discretionary or policy authority over the transactions identified in the
Richardsons’ complaint. Matin became
involved in the transactions because her job duties required her to receive and
implement orders made in the earlier California litigation. MacArthur became involved because he answered
a phone call from Christopher Richardson and corresponded with him regarding
his request to redeem the Mid-State Bancshares stock.
The Richardsons’ allegations that these
individual defendants had more significant roles in the events leading up to
this lawsuit, or stood to personally gain from the underlying transactions, do
not satisfy their burden of proof. While
Benning Richardson filed declarations in support of the motions to quash in
order to verify the allegations of the complaint, the material allegations
regarding Matin’s and MacArthur’s involvement were made on information and
belief. “Even
though a verified complaint may serve as an affidavit, statements made on
information and belief will not sustain the burden of proof.” (Shearer
v. Superior Court (1977) 70 Cal.App.3d 424, 430.) There are simply no facts from which one
could conclude that Matin or McArthur purposefully directed their activities on
behalf of Mid-State Bancshares to California residents or that it would be fair
or just to hold them subject to California jurisdiction. (Cf. Anglo
Irish Bank Corp., PLC v. Superior Court (2008) 165 Cal.App.4th 969, 974.)
Trial Court’s Authority to Grant the Defendants’ Motions.
The
Richardsons also claim that the trial court acted beyond its authority when it
granted Matin’s and McArthur’s motions to quash because the timely filing of
the motion for change in venue operated to stay any other motion or proceeding
pending before that court. Here, the
co-defendants not party to this appeal filed a motion for change of venue from
San Francisco County to San Luis Obispo County on October 15, 2010. The change of venue motion was filed
simultaneously with Matin’s and McArthur’s motions to quash.
As a
general rule, when a notice of motion for change of venue is filed, the trial
court should not rule upon any matters that should properly be determined by
the trial court that will ultimately decide the case. (Pfefferle
v. Lastreto (1962) 206 Cal.App.2d 575, 580.) “But this restriction cannot be held to apply
to matters incidental to a consideration by the trial court of the motion to
change venue. . . . ‘The
reason for the suspension of such powers of the court is that if a defendant is
entitled to have his motion for change of venue granted, he is entitled to have
such matters heard before the court of the county of his
residence . . . .’ ”
(Ibid.) In Pfefferle,
the court considered a motion to sever multiple plaintiffs incidental to a
motion for a change of venue. (
motion to sever, because the decision on severance was ancillary to
considerations of proper venue. (
So, too,
here. The motions to quash were
incidental and separate from the issues presented by the venue motion and the
merits of the Richardsons’ complaint.
Moreover, the rationale for suspending a court’s power to act in favor
of determining matters in the defendant’s county of residence does not apply to
the circumstances in this case because no California court would have personal
jurisdiction over Matin and McArthur. (
Cal.App.2d 493, 503.) The trial court
did not act in excess of its jurisdiction when it decided Matin’s and
McArthur’s motions to quash.
C. Waiver of Personal Jurisdiction.
The
Richardsons assert that Matin and McArthur waived their ability to challenge
personal jurisdiction through various acts including: participating in and filing case management
statements; setting the hearing on motion to quash service of summons beyond
the 30-day period specified in section 418.10, subdivision (b); and
acknowledging receipt of service of process.
There is no indication that the Richardsons raised any of the waiver
issues to the trial court.
name="_ftnref3" title="">[3] “ ‘It is axiomatic that arguments not
asserted below are waived and will not be considered for the first time on
appeal.’ (Ochoa v. Pacific Gas &
Electric Co. (1998) 61 Cal.App.4th 1480, 1488.)” (Martinez
v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.) Thus, we conclude that the Richardsons
forfeited their ability to argue there was a waiver of the lack of in personam
jurisdiction.
Moreover,
neither scheduling a hearing date beyond the 30-day period articulated under
section 418.10, subsection (b) nor acknowledging receipt of service of summons
represents a defendant’s waiver of objections to personal jurisdiction. (Olinick
v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296;
Cal.App.3d 356, 361.) Additionally, once
a defendant’s motion to quash for lack of jurisdiction is timely filed, no act
by the defendant constitutes an appearance, unless the court denies the
motion. (§ 418.10, subd. (e) (1).)
the court must consider a challenge to personal jurisdiction waived for the reasons
presented by the Richardsons.
DISPOSITION
The orders
granting defendants’ motions to quash are affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
All subsequent statutory references are to the Code of Civil Procedure.
Nor does California recognize conspiracy allegations as a basis for acquiring
personal jurisdiction over a party through a co-conspirator’s actions in the
state. (Mansour v. The Superior Court (1995) 38 Cal.App.4th 1750, 1760.)
