Filed 7/8/21 Vosburg v. Harrison CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEVEN VOSBURG,
Plaintiff and Appellant, E074705
v. (Super.Ct.No. CIVDS1911175)
WAYNE HARRISON, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Wilfred J.
Schneider, Jr., Judge. Affirmed.
The Traut Firm, James R. Traut and Taylor Traut for Plaintiff and Appellant.
Macdonald & Cody, Scott L. Macdonald, Douglas M. Carasso; Carbone, Smoke,
Smith, Bent & Leonard and Julie Kimiye Koyama for Defendant and Respondent.
1 I. INTRODUCTION
Plaintiff and appellant, Steven Vosburg, and defendant and respondent, Wayne
Harrison, were involved in a motor vehicle accident on August 21, 2017, in the State of
Idaho. On April 11, 2019, plaintiff filed a civil complaint against defendant for personal
injuries sustained in that accident in the Superior Court of San Bernardino County. On
January 15, 2020, the trial court granted a motion by defendant to quash service of
summons for lack of personal jurisdiction, and plaintiff appeals from this order. On
appeal, plaintiff’s sole argument is the trial court erred because the evidence before the
trial court established the trial court’s general jurisdiction over defendant. We conclude
the trial court’s findings are supported by substantial evidence, and we affirm the order.
II. FACTS AND PROCEDURAL HISTORY
A. Pleadings
On April 11, 2019, plaintiff filed a civil complaint for personal injuries in the
Superior Court of San Bernardino County against defendant. The complaint alleged a
single cause of action for negligence, arising out of a motor vehicle accident that
occurred on August 21, 2017, in the Idaho. On August 6, 2019, plaintiff filed a proof of
service of summons indicating that on July 23, 2019, defendant had been served by
certified mail, return receipt requested, at an address outside of California.
B. Defendant’s Motion to Quash
On August 29, 2019, defendant filed a motion to quash service of summons for
lack of personal jurisdiction.
2 1. Defendant’s Declaration
In support of his motion, defendant submitted a declaration in which he confirmed
he had been involved in a motor vehicle accident in Idaho on August 21, 2017.
Defendant declared that, at the time of the accident, he owned two residences—one in
California and one in Arizona—and the vehicle he was driving at the time of the accident
was registered in Arizona. Defendant further declared he had been retired since 2012,
was not acting as an agent or employee of any California resident or corporation at the
time of the accident; did not operate any businesses in California; did not hold any
licenses or certificates issued by any California governmental entity; and did not maintain
any associations with California that requires his physical presence in the state. Since the
accident, defendant had purchased a new residence in Utah, was residing at that
residence, had no intention of returning to reside in California, and was in the process of
selling his California residence. His only visits to California since moving to Utah were
to visit family and friends.
2. Idaho Collision Report
In opposition to the motion to quash, plaintiff presented a copy of an Idaho vehicle
collision report for the 2017 accident. The report listed an address in Yucaipa,
California, as defendant’s address. However, it also noted that defendant held an Arizona
driver’s license and was driving a vehicle registered in Arizona.
3 3. Defendant’s Responses to Interrogatories1
Plaintiff also submitted excerpts from defendant’s responses to special
interrogatories. According to defendant’s interrogatory responses, he was born in
California and had a residence in California until 2019. When asked to identify his
primary residence at the time of the 2017 accident, defendant identified both his
California and Arizona residences. When asked to identify the residence where he spent
“most of his time” at the time of the accident, defendant again identified both his
California and Arizona residences. He estimated that he spent half the year (26 weeks) in
California in 2017 and 2018, but he spent only four weeks in California in 2019. While
he owned a vehicle registered in California in 2017, by the time the complaint was filed
in 2019, he no longer owned any vehicles registered in California. Defendant did not
hold a California driver’s license at any time relevant to the litigation and had never been
registered to vote in California during that time period, instead stating he had been
registered to vote in Arizona until recently registering in Utah.
Defendant’s interrogatory responses also disclosed that his mother and father had
lived in Yucaipa, California, until sometime in 2018. Defendant became the executor of
their estate when they passed, and the residence in which his parents lived was sold in
May 2019.
1 Plaintiff presented only specified excerpts of defendant’s interrogatory responses in opposition to the motion. However, defendant submitted the entire response for context in reply.
4 In April 2019, defendant moved to a residence in Utah. Prior to this time, he had
only gone to Utah periodically to visit his children. He listed his California residence for
sale during his move to Utah and had not slept in his California residence since moving to
Utah. Since moving to Utah, defendant had visited California on only four occasions, but
stayed in a relative’s home on each occasion. On two of those occasions, defendant was
in California for only one day while en route to and from Hawaii.
Defendant was asked to identify real property in which he held an “ownership
interest.” At the time of the 2017 accident, defendant identified six properties in
California and one in Arizona. At the time plaintiff’s complaint was filed, defendant held
an interest in four properties in California, one in Utah, and one in Arizona. At the time
defendant was served with the summons, he held an interest in three properties in
California, two in Utah, and one in Arizona.
At the time he responded to interrogatories, defendant had no future trips to
California planned.
4. Declaration of Investigator
Finally, plaintiff submitted the declaration of a private investigator. The
investigator declared that he contacted a current occupant of one of the residences in
which defendant identified as having an ownership interest and he was told that it was a
rental property, managed by a property management company, and owned by someone
living out of state. When the investigator contacted the property management company,
he was told that the company managed multiple properties for that owner and identified
the owner’s last name as that of defendant.
5 C. Hearing and Ruling
The trial court held a hearing in which plaintiff submitted on the written
submissions without presenting any additional argument. In a written ruling, the trial
court found that defendant had been domiciled in Arizona both at the time of the accident
and at the time plaintiff’s complaint was filed. The trial court further found that while
defendant had “continuous, systematic, and substantial” contact with California at the
time of the accident, defendant no longer had such contact at the time he was served with
the summons and complaint. Based upon these findings, the trial court concluded that it
did not have general jurisdiction over defendant. The trial court further concluded that
since the litigation did not involve any of defendant’s contacts with California, specific
jurisdiction did not exist.
III. DISCUSSION
On appeal, plaintiff does not challenge the trial court’s conclusion with respect to
specific jurisdiction but argues the trial court erred in concluding it lacked general
jurisdiction over defendant. We disagree.
A. General Legal Principles and Standard of Review
“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. [Citation.] A state court’s assertion of personal 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 state that the assertion of jurisdiction
6 does not violate ‘ “traditional notions of fair play and substantial justice.” ’ ” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444-445 (Vons
Companies).)
“Personal jurisdiction may be either general or specific. A nonresident defendant
may be subject to the general jurisdiction of the forum if his or her contacts in the forum
state are ‘substantial . . . continuous and systematic.’ [Citations.] . . . [¶] If the
nonresident defendant does not have substantial and systematic contacts in the forum
sufficient to establish general jurisdiction, he or she still may be subject to the specific
jurisdiction of the forum, if the defendant has purposefully availed himself or herself of
forum benefits [citation], and the ‘controversy is related to or “arises out of” a
defendant’s contacts with the forum.’ ” (Vons Companies, supra, 14 Cal.4th at pp. 445-
446.)
A defendant may assert the absence of personal jurisdiction by bringing a motion
to quash service of summons. (Code Civ. Proc., § 418.10.) “When a California
defendant moves to quash service for lack of personal jurisdiction, the burden is on the
plaintiff to establish jurisdiction by a preponderance of the evidence.” (Roy v. Superior
Court (2005) 127 Cal.App.4th 337, 343 (Roy); see CenterPoint Energy, Inc. v. Superior
Court (2007) 157 Cal.App.4th 1101, 1117 (CenterPoint Energy).) “ ‘This may be done
through presentation of declarations, with opposing declarations received in response. . .
.’ If the plaintiffs are able to make a showing of minimum contacts with the forum state,
‘the burden shifts to the defendant to present a compelling case demonstrating that the
7 exercise of jurisdiction by our courts would be unreasonable.’ ” (CenterPoint Energy, at
p. 1118.)
“The existence of personal jurisdiction will often present a mixed question of law
and fact. [Citation.] To the extent that there are factual conflicts, the trial court resolves
those disputes and the substantial evidence standard governs our review. [Citation.] The
ultimate question whether jurisdiction is fair and reasonable under all of the
circumstances, based on the facts which are undisputed and those resolved by the court in
favor of the prevailing party, is a legal determination warranting our independent
review.” (Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 585.)
8 B. The Trial Court’s Factual Findings Are Supported by Substantial Evidence
Here, the trial court made a factual finding that defendant was never domiciled2 in
California at any time relevant to plaintiff’s suit, concluding that defendant’s domicile
was in Arizona at the time of the accident and up until the time defendant moved to Utah.
On appeal, plaintiff contends this factual finding was erroneous as a matter of law. We
find no error in the record before us.
Initially, we disagree with plaintiff’s contention that we may independently review
the evidence to resolve this factual dispute. While it is true that the parties primarily
relied upon the same evidence in making their arguments to the trial court, they strongly
disagreed over the inferences to be drawn from that evidence. “ ‘Even in cases where the
evidence is undisputed or uncontradicted, if two or more different inferences can
reasonably be drawn from the evidence, this court is without power to substitute its own
inferences or deductions for those of the trier of fact.’ ” (Schwan v. Permann (2018)
28 Cal.App.5th 678, 693-694.) Thus, it is not appropriate for this court to substitute its
2 “Courts and legal writers usually distinguish ‘domicile’ and ‘residence,’ so that ‘domicile’ is 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; whereas ‘residence’ connotes any factual place of abode of some permanency, more than a mere temporary sojourn. ‘Domicile’ normally is the more comprehensive term, in that it includes both the act of residence and an intention to remain; a person may have only one domicile at any given time, but he may have more than one physical residence separate from his domicile, and at the same time.” (Smith v. Smith (1955) 45 Cal.2d 235, 239.) The distinction between one’s domicile and residence is widely recognized in a variety of legal contexts under California law. (See Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 284 (Whittell); People v. McCleod (1997) 55 Cal.App.4th 1205, 1217.)
9 independent judgment for that of the trial court in resolving these disputes, and we review
the finding for substantial evidence.
Additionally, we note that in the context of a motion to quash, plaintiff bore the
burden of proof to establish jurisdiction by a preponderance of the evidence. (Roy, supra,
127 Cal.App.4th at p. 343.) “ ‘[W]here the issue on appeal turns on a failure of proof at
trial, the question for a reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law. [Citations.] Specifically, . . . whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.” ’ ” (Valero v. Board of Retirement of Tulare County
Employees’ Assn. (2012) 205 Cal.App.4th 960, 966; see Dreyer’s Grand Ice Cream, Inc.
v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Thus, on review, the trial court’s
factual finding that defendant was never domiciled in California during the time period
relevant to this litigation will not be overturned unless the evidence in the record was of
such character and weight as to leave no room for such a determination.
Here, the evidence clearly established that defendant maintained a residence in
California at the time of the 2017 accident subject of this litigation, as well as at the time
the complaint was filed. However, the evidence also showed that defendant maintained
another residence in Arizona at all relevant times, that he spent at least half the year at his
Arizona residence even while maintaining a residence in California, that he was
registered to vote in Arizona and not California, and that he held a driver’s license issued
in Arizona and not California. Further, between the time of the accident and the service
10 of summons, defendant had significantly reduced his property holdings in California,3
vacated his residence in California, and listed the California residence for sale—all while
continuing to maintain ownership of his Arizona residence.
This was substantial evidence upon which the trial court could reasonably
conclude that defendant’s domicile was in Arizona until more recently moving to Utah.
At the very least, it cannot be said that the evidence was of such character and weight as
to compel a finding that defendant was domiciled in California at any time relevant to
this litigation. Where the trial court’s factual findings are supported by substantial
evidence, a reviewing court will not disturb such findings on appeal.
C. Absent Domicile, the Remaining Facts Do Not Support an Exercise of General
Jurisdiction
Plaintiff also argues that, regardless of the trial court’s factual determination that
defendant was never domiciled in California during the times relevant to this litigation,
defendant’s remaining contacts with the state are so numerous such that general
jurisdiction may be properly found. We disagree.
“There is a dearth of case law on general jurisdiction over natural persons.”
(Serafini v. Superior Court (1998) 68 Cal.App.4th 70, 79 (Serafini).) Nevertheless, the
United States Supreme Court has held that “[f]or an individual, the paradigm forum for
the exercise of general jurisdiction is the individual’s domicile.” (Goodyear Dunlop
3 According to defendant’s interrogatory responses, he held an interest in six properties in 2017, an interest in only four properties by the time the complaint was filed in April 2019, and an interest in only three properties by the time he was served with the summons in July 2019.
11 Tires Operations, S. A. v. Brown (2011) 564 U.S. 915, 924 (Goodyear Dunlop); see Ford
Motor Co. v. Mont. Eighth Judicial Dist. Court (2021)___U.S.___,___[141 S.Ct. 1017,
1024].) Thus, where a defendant is not domiciled in the forum state, “[t]he ‘standard for
establishing general jurisdiction is “fairly high” [citation], and requires that the
defendant’s contacts be of the sort that approximate physical presence.’ ” (Elkman v.
National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1315; see David L. v. Superior
Court (2018) 29 Cal.App.5th 359, 366 [For general jurisdiction, the defendant’s contacts
must be “ ‘so wide-ranging that they take the place of physical presence in the
forum.’ ”].) The facts must be such that the nonresident defendant can be considered
“ ‘ “essentially at home in the forum State.” ’ ” (Haylard Health, Inc. v. Kimberly-Clark
Corp. (2019) 43 Cal.App.5th 1062, 1070; Ford Motor Company, supra, 141 S.Ct. at
p. 1024.)
Here, the trial court’s factual finding that defendant was never domiciled in
California at any time relevant to this litigation strongly weighs against a finding of
general jurisdiction. Further, defendant was not served with the summons until
July 2019. By that time, defendant no longer had a vehicle registered in California, had
vacated his California residence, and had listed his California residence for sale.
Defendant reported spending only four weeks in California in 2019. Under such
circumstances, defendant cannot be fairly characterized as “essentially at home” in
California.
Plaintiff argues that defendant’s continued ownership of rental properties in
California, filing of California tax returns, service as executor to his parent’s estate, and
12 continued presence of family in California all weigh in favor of finding general
jurisdiction. However, as we explain, those remaining contacts cannot be fairly
considered so wide ranging as to approximate or take the place of defendant’s physical
presence within the state.
First, merely holding an ownership interest in real property located in California
has little weight in determining whether general jurisdiction is appropriate over a
nonresident. “Ownership of property in California ‘alone would not support the State’s
jurisdiction.’ ” (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 271; see Shaffer v.
Heitner (1977) 433 U.S. 186, 208-209 [“[W]here . . . the property which now serves as
the basis for state-court jurisdiction is completely unrelated to the plaintiff’s cause of
action . . . the presence of the property alone would not support the State’s
jurisdiction.”].) While ownership of property within the state would clearly subject a
nonresident to specific jurisdiction with respect to controversies involving such property,
mere ownership of real property for a purpose other than residence is not an act that can
be characterized as akin to the physical presence of defendant in the state.
Additionally, the fact the real property at issue in this case is used to generate
income does not support the assertion of general jurisdiction. Both the United States and
the California Supreme Courts have held that a nonresident’s act of conducting business
within a state does not support an assertion of general jurisdiction. (Goodyear Dunlop,
supra, 564 U.S. at pp. 927-928 [Conducting business within a state “may bolster an
affiliation germane to specific jurisdiction. . . . But ties serving to bolster the exercise of
specific jurisdiction do not warrant a determination that, based on those ties, the forum
13 has general jurisdiction over a defendant.”]; Cornelison v. Chaney (1976) 16 Cal.3d 143,
149 [defendant who engaged in business activity in California—which included periodic
trips into the state to deliver and obtain goods, an ongoing relationship with an in-state
entity, and a state license—was not sufficient to establish general jurisdiction].)
Second, the fact that defendant filed California tax returns has almost no
relevance. “While a person can have in law only one domicile [citation], he may have
. . . more than one ‘residence’ for tax purposes.” (Whittell, supra, 231 Cal.App.2d at
p. 284.) Notably, even persons who have no physical presence in California and who are
considered nonresidents can be required to file a California tax return. (Valentino v.
Franchise Tax Bd. (2001) 87 Cal.App.4th 1284, 1290; see Rev. & Tax. Code, § 17041,
subd. (b).) Thus, evidence that defendant filed a “California tax return” without any
additional indication of the type of tax return filed or the reasons necessitating these
filings has little, if any, bearing on a determination of whether defendant’s contacts with
the state approximate physical presence.
Third, the fact that defendant served or serves as the executor of his parents’ estate
has almost no relevance to determining general jurisdiction. “The Probate Code makes
specific allowance for a nonresident . . . to serve as executor of a will subject to probate
in California . . . .” (Estate of Condon (1998) 65 Cal.App.4th 1138, 1143.) In fact, the
Probate Code expressly recognizes that a resident of this state appointed as an executor
may later move and become a nonresident. (Prob. Code, § 8570.) If serving as an
executor is not the type of act that would even suggest residence within the state, such act
would clearly have even less relevance for the purpose of determining whether the
14 defendant can be characterized as “physically present” or “essentially at home” in the
state.
Finally, we are uncertain why plaintiff believes the presence of family members
within the state is a fact relevant to the assertion of jurisdiction. “ ‘ “[P]ersonal
jurisdiction over any non-resident individual must be premised upon forum-related acts
personally committed by the individual.” ’ ” (Crea v. Busby (1996) 48 Cal.App.4th 509,
517.) The choice of defendant’s relatives to live in California is not an act attributable to
defendant. Thus, irrespective of the number of relatives defendant may have that choose
to reside in California, this fact cannot be the basis of an assertion of personal jurisdiction
over defendant.
Because the trial court made a factual finding that defendant was never domiciled
in California at any relevant time period and substantial evidence supports the
determination, the minimal contacts that defendant maintained at the time he was called
upon to answer plaintiff’s complaint do not support the assertion of general jurisdiction
D. General Jurisdiction Cannot be Premised Upon Contacts that No Longer Exist
On appeal, plaintiff relies heavily on the fact that defendant was a “long-time
California resident” and “native son” of California prior to service of summons in this
action, pointing to the fact that defendant was born in California and had spent six
decades in California before moving to Utah. However, traditional notions of fair play
and substantial justice do not support reliance on past contacts to support a claim of
general jurisdiction.
15 In Serafini, supra, 68 Cal.App.4th 70, the Court of Appeal considered the
propriety of asserting general jurisdiction over a nonresident individual based upon his
extensive past business contacts requiring physical presence in the state. (Id. at pp. 79-
80.) The court noted that there appeared to be little case law addressing this specific
issue in the context of natural persons but analogized to principles of general jurisdiction
with respect to nonresident corporations. (Ibid.) It noted that even where a nonresident
corporation at one time had substantial and continuous contacts sufficient to support
general jurisdiction, “[w]hen the corporation ceases to do business in the state, there is no
longer any general jurisdiction, i.e., jurisdiction as to causes of action independent of that
business.” (Ibid.) Based upon this reasoning, the Court of Appeal concluded that, where
a natural person may have had sufficient substantial contact in the state at one point but
ceased that activity prior to service of process in the action, general jurisdiction over that
individual no longer existed and any exercise of jurisdiction must be premised upon
specific jurisdiction related to the defendant’s actual activity within the state. (Ibid.)
We agree with the reasoning in Serafini, supra, 68 Cal.App.4th 70. The principle
behind an assertion of general jurisdiction is that a defendant’s contacts with the forum
state are so extensive that it is “consistent with traditional notions of fair play and
substantial justice to subject the defendant to the jurisdiction of the forum even when the
cause of action is unrelated to the defendant’s contacts with the forum.” (Brue v. Al
Shabaab (2020) 54 Cal.App.5th 578, 589.) Thus, where a defendant has substantial
current and ongoing contacts with the state that are so significant that the defendant can
be fairly considered physically present in the state, it does not offend any notion of fair
16 play or substantial justice to expect that defendant to answer in the courts of that state.
Because the defendant’s contacts are so extensive as to approximate physical presence, it
would be no different from demanding the defendant appear in the courts of the state in
which he or she is domiciled.
However, this reasoning makes little sense when the substantial contacts upon
which a plaintiff relies are no longer in existence at the time the defendant is called upon
to answer in court. In our view, to premise an assertion of general jurisdiction based
upon those past contacts would extend the notion of general jurisdiction too far. It is not
uncommon for persons to spend significant portions of their lives in one state, only to
permanently move to another state for a variety of reasons. It would be fundamentally
unfair to assert that California can maintain general jurisdiction over such persons based
primarily on their historical connections with the state. Thus, we find plaintiff’s
arguments on this point unpersuasive.
17 IV. DISPOSITION
The order is affirmed. Respondent to recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
SLOUGH J.