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Case of the Month Archive

January 2019

Always mighty glad to see her. . .


In writ proceeding, Fourth District, relying on Walden , holds that mother’s paternity and child support proceeding fails for lack of personal jurisdiction over alleged biodad whose sexual relations with her during business trips did not constitute sufficient suit-related contacts with California to support exercise of personal jurisdiction over him


David L. v. Superior Court (Mariana C.)

(November 26, 2018)

California Court of Appeal 4 Civil D073996 (Div 1) 29 Cal.App.5 th 359, 240 Cal.Rptr.3 rd 462, 2018 FA 1865, per Dato, J (Huffman, Acting PJ and Haller, J, concurring). San Diego County: Birchak, J, petition granted. For petitioner: Dennis Temko, (858) 274-3538. For trial court: no appearance. For real party: Maria Kraus and Ali Puente-Douglass, (877) 534-2524. CFLP §§B.7, B.19.


According to Mariana C.’s paternity petition, she had an intimate relationship with Connecticut resident, David L., that began in 2001. The two “were intimate until 2009 in ‘various hotels in California as well as other states.’” This relationship resulted in a pregnancy in 2003, but Mariana later miscarried. In 2009, she stopped seeing David, who she believed did not love his wife, after she learned that he and his wife had a 9-year-old daughter.


In 2013, Mariana, whose marriage was turning sour, sought to resume her relationship with David, who was now divorced. They phoned and texted each other, finally meeting “casually” in Las Vegas in 2015. They “spent the night” with each other during David’s business trips to California in April and August 2016. In November, Mariana went to Omaha, Nebraska to see David during his business trip there. Two weeks after that encounter, Mariana announced that she was pregnant with David’s child. After that, David told her to communicate with him through his lawyer from then on.


In September 2017, Mariana filed a petition to establish David’s paternity of her one-month-old child and for child support. She contended that the San Diego County trial court had jurisdiction over David because she and the child lived in California, David knew that she resided in and would raise the child in California, and the child was born in California. Mariana also stated that it would be financially difficult for her to bring suit in Connecticut. Along with her petition, Mariana submitted an affidavit of nonpaternity from her husband stating that he had not been intimate with her during the applicable time period, and a “string of text messages” to support her meetings with David. Mariana served David with the petition and summons by certified mail at his Connecticut address.


David then made a special appearance to contest jurisdiction and filed a motion to quash service of summons. In his supporting declaration, David stated that he had never lived in California, owned property here, or paid taxes, registered to vote, opened a bank account, or had a driver’s license here. He also stated that the child, if his, was not conceived in California, and his actions had not forced Mariana to live here, as she already did. David claimed that he “made a few visits to California” as necessary for his work as a concert promoter, but only visited this state for business, and that Mariana’s lawsuit had nothing to do with his business activities. He also moved strike parts of Mariana’s declaration, claiming that evidence of their meeting and subsequent relationship, her miscarriage, and her claim that her husband denied paternity were irrelevant.


At a hearing on David’s motion, the trial court overruled his objections and accepted the parties’ declarations into evidence. The court found that evidence of Mariana’s miscarriage, and the parties’ encounters in various California hotels, was relevant to show continuing or sufficient contacts with California on a related issue to support the trial court’s exercising jurisdiction over David per Fam C §5700.201(a)(8)[catch-all jurisdictional basis]. The trial court then continued the matter to consider the possible application of Fam C §7540 [marital presumption], paternity testing for David, and joinder of Mariana’s husband as a necessary party. The trial court subsequently signed Findings and Order after Hearing consistent with its jurisdictional ruling.


David then petitioned the Fourth District for a writ of mandate for relief from the trial court’s denial of his motion to quash, and the justices granted his petition and issued the requested writ.


A snare and a delusion. . .
The panel first noted that the catch-all provision in Fam C §5700.201(a)(8) is the only one of the statute’s listed bases for personal jurisdiction in a paternity or support suit that applies here. It provides that a trial court may assume personal jurisdiction on any other basis consistent with state and federal constitutions for doing so. The justices then looked to see whether the trial court’s exercise of personal jurisdiction complied with those constitutions. The justices reasoned that personal jurisdiction may be either general or specific. General jurisdiction may be exercised when a defendant has continuous and systematic forum contacts, even if those contacts are unrelated to the underlying suit. Here, the panel found, David’s sporadic business contacts to promote concerts in California were not so continuous and systematic as to support an exercise of general jurisdiction.


That was then, this is now. . .
Turning to specific jurisdiction, the justices explained that it requires that a defendant purposefully availed himself or herself of forum benefits or directed activities at forum residents. In addition, the lawsuit must relate to or arise from the defendant’s forum related activities, and an exercise of jurisdiction must comport with traditional notions of fair play and substantial justice. The panel noted that Mariana was basing her jurisdictional claims on the “effects” test that formerly applied in cases such as Kulko v. Superior Court (1978) 436 U.S. 84, 98 S.Ct.1690, 1978 CFLR 1143, which analyzed whether a defendant caused an effect in the state by an act or omission that occurred elsewhere. However, the justices found, that test has been supplanted by the United States Supreme Court’s decision in Walden v. Fiore (2014) 571 U.S. 277, where the Supremes said that a defendant’s relationship with the plaintiff, but itself, is not sufficient to establish personal jurisdiction, and similarly a defendant’s “‘random, fortuitous, or attenuated contacts’” or the plaintiff’s unilateral activity are not enough. The new test was expanded on in Burdick v. Superior Court (2015) 233 Cal.App.4 th 8, where the panel found that the trial court must focus on the defendant’s suit-related contacts with the forum, not just with the plaintiff, and determine whether those contacts establish a sufficient relationship among the defendant, the forum, and the litigation to satisfy due process.


Not remotely applicable. . .
Applying that test, the justices found that David’s only suit-related contacts tying him to California were his sporadic relations with California resident, Mariana. His business trips did not do so, nor did his past contacts with Mariana between 2001 and 2009, which were too remote in time to be a jurisdictional basis. The panel recognized that Mariana was a California resident and David knew that she was, but per Walden , that was not a sufficient basis on which to establish jurisdiction. What was needed was evidence that David’s suit-related conduct created a substantial connection with California separate from his contacts with her; and that evidence was lacking. Summing up, the justices concluded that, on these facts, Walden compelled them to find that the lower court erred by assuming personal jurisdiction over David, and to grant his petition. Accordingly, the panel issued a writ of mandate directing the trial court to vacate its order denying David’s motion to quash service and to enter a new order granting the motion and quashing service.





Although they feel compelled to follow Walden , the justices aren’t necessarily unsympathetic to Mariana’s plight. They say that 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.” Having just told us that David’s knowledge of her residence and the significant effects that her pregnancy would have are not the test for determining whether personal jurisdiction can be had, their comment itself is disconcerting. What is even more disconcerting is that, in a footnote below these comments, the justices tell us that, as David conceded, Mariana could have acquired specific jurisdiction through personal service of the summons in this state, per Burnham v. Superior Court (Burnham) (1990) 495 U.S. 604, 110 S.Ct. 2105, 1990 CFLR 4361, 1990 FA 430, “[b]ut she instead effected service through certified mail in Connecticut.” In Burnham , the U.S. Supreme Court held that presence in a state is enough to establish in personam jurisdiction over a defendant served while there; due process does not require a physically present defendant to have “minimum contacts” with the state. Francie Burnham had filed for divorce in Marin County in January 1988, and had her husband, Dennis, personally served while he was in California to do some business and to visit their children. Alleging lack of personal jurisdiction, Dennis moved unsuccessfully to quash and the First District denied his writ petition. After the California Supreme Court denied review, the U.S. Supreme Court granted cert and unanimously affirmed the judgment. A plurality also distinguished Shaffer v. Heitner (1977) 433 U.S. 186 [trial court must find sufficient significant connection between defendant and forum before exercising in rem or quasi-in-rem jurisdiction] on the basis that its “minimum contacts” requirement does not apply if the defendant was physically present in the state when served. Note, however, that in In re Marriage of Fitzgerald and King (1995) 39 Cal.App.4 th 1419, 46 Cal.Rptr.2d 558, 1996 CFLR 7003, 1995 FA 726, the Sixth District distinguished Burnham by holding that where an out-of-state spouse was served with OSC papers in California when she appeared for another OSC hearing, personal service did not confer jurisdiction on the California trial court for all proceedings. Meanwhile, it seems that Mariana is left to hope that she can catch David in California sometime and serve him with the summons and complaint, while he avoids her like the plague.



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