Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of No. BC346860 Los Angeles County. John P. Shook, Judge.
Browne Woods & George; Dreier Stein Kahan Browne Woods George, Peter W. Ross and Michael J. Perry for Plaintiff and Appellant.
Daar & Newman, Michael R. Newman and Jeffery J. Daar for Defendants and Respondents.
DOI TODD, J.
Plaintiff and appellant Patrick Bertranou appeals following the trial court’s order quashing service of summons on defendants and respondents Kenneth Weissberg (Weissberg), Weissberg Gaetjens Ziegenfeuter & Associes (WGZ) and Guy Viart (Viart) (sometimes collectively defendants). Appellant contends that the trial court erred because he demonstrated that defendants had sufficient minimum contacts with the state of California and the exercise of jurisdiction over them was reasonable. We affirm. Substantial evidence supported the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is the principal and chief executive officer of OrthoTec LLC, a company that markets surgical devices in the United States. He is a dual citizen of the United States and France, residing in California. He has a vacation home in France and is subject to the jurisdiction of the French courts. Viart is a citizen and resident of France and the director general for Eurosurgical, S.A. (Eurosurgical), a French corporation. WGZ, the law firm of which Weissberg is a member, represents Eurosurgical in France.
In February 2006, appellant filed an unverified complaint for abuse of process and malicious prosecution (complaint) against defendants. He alleged that a number of years ago OrthoTec entered into an agreement with Eurosurgical (agreement), whereby it purchased the intellectual property and marketing rights to certain products developed by Eurosurgical for the purpose of marketing those products in the United States. On the basis of OrthoTec’s information and belief, the complaint further alleged that Eurosurgical was envious of OrthoTec’s marketing success and, for that reason, “hatched a secret plan to steal back the rights.” Eurosurgical falsely claimed that OrthoTec had an unpaid debt and on that basis purported to exercise its option to repurchase the intellectual property rights and thereafter compete with OrthoTec.
The complaint further alleged that OrthoTec thereafter brought two lawsuits against Eurosurgical in California. OrthoTec sued Eurosurgical in Los Angeles County Superior Court (case No. BC276958) (state court action); in August 2004 OrthoTec received an almost $9 million judgment against Eurosurgical and a declaration that it owned all relevant rights previously transferred by Eurosurgical. During the pendency of the state court action, OrthoTec brought a second action against Eurosurgical and several other companies in the United States District Court, Central District of California (case No. CV-03-8346) (federal court action) alleging trademark and copyright infringement. In January 2007, OrthoTec recovered an almost $30 million judgment against Eurosurgical on its trademark claim.
The agreement contained a forum selection clause providing that “Eurosurgical agrees that all actions and proceedings arising from this Agreement may be litigated in courts within the County of Los Angeles, California” and a further recital that “Eurosurgical hereby consents to the jurisdiction of any proper court located within California and waives personal service of process upon Eurosurgical.”
Pursuant to Evidence Code sections 452, subdivision (d) and 459, we grant appellant’s request to take judicial notice of the Court of Appeal’s opinion in the state court action, in which the judgment was affirmed in part and reversed in part, and the Ninth Circuit’s order in the federal court action dismissing the appeal for the failure to enter an appearance of new counsel.
According to the complaint, “faced with a lack of success in the California Actions, defendants came up with a new scheme to pressure OrthoTec to either abandon the California Actions or else settle them on terms favorable to Eurosurgical.” The alleged scheme involved Eurosurgical initiating a number of criminal charges against appellant in different cities in France based on the same claims involved in the state court action and the federal court action. In 2003 and 2004, Eurosurgical caused to be filed criminal complaints against appellant in Grasse and Paris which alleged that appellant had embezzled funds and infringed on Eurosurgical’s trademarks (French prosecutions).
According to the complaint, “a private citizen in France, such as Eurosurgical, can file and pursue criminal charges against another private citizen, such as [appellant].”
In connection with his abuse of process cause of action, appellant alleged that the French prosecutions were a misuse of the French criminal justice system because they were based on claims that had been resolved adversely to Eurosurgical in the state court action and the federal court action, and were initiated for the ulterior purpose of gaining a collateral advantage over him in those actions. In support of his malicious prosecution cause of action, appellant alleged that the criminal complaint filed in Grasse was resolved in his favor. The complaint further alleged that no reasonable person would have believed the French prosecutions had merit and they were filed for the primary purpose of inflicting emotional distress on appellant.
In March 2006, defendants moved to quash the service of summons for lack of personal jurisdiction. In support of the motion, they submitted the declarations of Viart, Weissberg and Michael Newman (Newman), counsel for Eurosurgical in the state court action and the federal court action. According to those declarations, Viart is a citizen and resident of France. He never lived, owned or leased real property, paid taxes, had bank accounts, listed a telephone number, solicited business, conducted business or advertised in California. He had neither filed a lawsuit nor had an agent for service of process in California. He had been to California on a few occasions in his capacity as an officer of Eurosurgical. In December 2001, he met with appellant in California on behalf of Eurosurgical and at some point attended one trade show in California with appellant. By reason of the state court action that OrthoTec filed against Eurosurgical in California, Viart traveled to California to attend the mediation and trial of that lawsuit.
Weissberg is a dual citizen of the United States and France who resides in France. He is a member of WGZ. He traveled to California twice to vacation and two to three times on business over a period of many years. He never lived, owned or leased real property, paid taxes, had bank accounts, listed a telephone number, solicited business or practiced law in California. He had not availed himself of the jurisdiction of the California courts. He was not certified as a foreign legal consultant nor had he ever had an agent for service of process in California.
WGZ, which represented Eurosurgical in France, had no office, employees or real property interest in California. It had not paid taxes, owned bank accounts, solicited business, advertised or practiced law in California. WGZ never had an agent for service of process in California. Neither Weissberg nor WGZ had ever acted as Viart’s personal attorney. Newman declared that neither Viart, Weissberg nor WGZ was a party to either the state court action or the federal court action.
Appellant opposed the motion to quash. In support of his opposition, he submitted his own declaration, together with copies of Weissberg’s resume, letters to his attorneys from Weissberg mailed to California, a K-1 for Ortholink, a company doing business in California of which Viart was a member and documents related to the California actions. According to appellant’s declaration, Weissberg was a registered legal consultant in the United States, and WGZ conducted business in the United States, having offices in both New York and Florida. He further declared that Viart had been to California at least three times to meet with him and for a four-day period in March and April 2004 to testify against OrthoTec. Viart had also sent him numerous letters, faxes and e-mails in California, none of which were attached to the declaration.
Appellant’s declaration also outlined Eurosurgical’s scheme that formed the basis of the complaint. According to appellant: “Defendants pursued a multiplicity of actions in wide-flung jurisdictions, based on flimsy or wholly fabricated grounds or claims previously decided against Eurosurgical in the California Actions. Defendants did so for the ulterior purpose of obtaining a collateral advantage over my company, OrthoTec, in the California Actions.”
Viart submitted a further declaration in reply, in which he averred that he had no knowledge of any interest in Ortholink and that his listing as a member of that company was without his knowledge or consent. Defendants also offered records from the California Secretary of State showing that appellant was the only registered agent for Ortholink.
After a May 23, 2006 hearing, the trial court granted the motion to quash the service of summons “[o]n proof made to the satisfaction of the Court [that it] has no jurisdiction over the person of any of the Defendants . . . .” It dismissed the matter pursuant to Code of Civil Procedure sections 418.10 and 581, subdivision (g). This appeal followed.
DISCUSSION
I. Standard of Review.
“When a nonresident defendant challenges personal jurisdiction, the burden shifts to the plaintiff to demonstrate, by a preponderance of the evidence, that all necessary jurisdictional criteria have been met. The plaintiff can meet this burden only by the presentation of competent evidence in affidavits or declarations and authenticated documentary evidence. [Citation.] Affidavits or declarations consisting primarily of vague assertions of ultimate fact rather than specific evidentiary facts are not sufficient. [Citation.] Once the plaintiff has met the burden of demonstrating facts justifying the exercise of jurisdiction, the burden shifts to the defendant to demonstrate that the exercise of jurisdiction would be unreasonable. [Citations.] [¶] Thus, the process is essentially an evidentiary one and the applicable standard of appellate review is the familiar substantial evidence rule. Therefore, if there is conflicting evidence presented by the parties, we are called upon to determine whether the trial court’s decision is supported by substantial evidence [citations], and, in doing so, we resolve all conflicts in the relevant evidence ‘against the appellant and in support of the order’ [citation]. If there is no conflict in the relevant evidence, the question is one of law as to which we exercise our independent judgment. [Citation.]” (Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1454 (Paneno).)
II. Jurisdictional Principles.
California’s long-arm statute authorizes the assertion of personal jurisdiction on any basis consistent with the United States and California Constitutions. (Code Civ. Proc., § 410.10; Paneno, supra, 118 Cal.App.4th at pp. 1454–1455.) That means a foreign defendant who has not been served with process in California may be subject to jurisdiction if he has the requisite “minimum contacts” with the state such that the assertion of jurisdiction would not offend “‘“traditional notions of fair play and substantial justice.”’” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons), quoting International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) “In other words, the exercise of jurisdiction must be reasonable.” (Paneno, supra, at p. 1455.) “Under the minimum contacts test, ‘[p]ersonal jurisdiction may be either general or specific.’” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney).) Because appellant does not challenge the trial court’s conclusion that defendants were not subject to general jurisdiction, we address only the requirements for specific jurisdiction.
As explained in Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich): “When determining whether specific jurisdiction exists, courts consider the ‘“relationship among the defendant, the forum, and the litigation.”’ (Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414, quoting Shaffer v. Heitner (1977) 433 U.S. 186, 204.) 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, supra, 14 Cal.4th at p. 446); (2) ‘the “controversy is related to or ‘arises out of’ [the] defendant’s contacts with the forum”’ (ibid., quoting Helicopteros, supra, 466 U.S. at p. 414); and (3) ‘“the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’”’ (Vons, supra, 14 Cal.4th at p. 447, quoting Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472–473 (Burger King).” (Accord, Snowney, supra, 35 Cal.4th at p. 1062.) Though this is a close case, as the trial court recognized, we conclude appellant failed to demonstrate that the jurisdictional criteria were met.
A. Purposeful Availment and Purposeful Direction.
“‘The purposeful availment inquiry . . . focuses on the defendant’s intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court’s jurisdiction based on’ his contacts with the forum. [Citation.]” (Pavlovich, supra, 29 Cal.4th at p. 269.) The phrase “purposeful availment” encompasses two distinct concepts: purposeful availment and purposeful direction. (Schwarzenegger v. Fred Martin Motor Co. (9th Cir. 2004) 374 F.3d 797, 802 (Schwarzenegger).) Under the concept of purposeful availment—used most often in contract cases—“a defendant ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ [Citation.]” (Ibid.) A purposeful direction analysis, on the other hand, is used most often in tort cases and usually consists of evidence that the defendant’s actions outside the forum were directed at the forum. (Id. at p. 803.)
A showing of purposeful direction can be satisfied by the “effects test” outlined in Calder v. Jones (1984) 465 U.S. 783 (Calder), which requires that “‘the defendant allegedly have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.’” (Schwarzenegger, supra, 374 F.3d at p. 803; see also Pavlovich, supra, 29 Cal.4th at p. 270; Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1057.) Pavlovich, supra, 29 Cal.4th at page 270, explained that while courts have applied the effects test to myriad intentional torts, application of the test has been less than uniform. “Indeed, courts have ‘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.’ [Citation.] [¶] Despite this struggle, most courts agree that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test. [Citations.] Instead, the plaintiff must also ‘point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum . . . .’ [Citation.]” (Pavlovich, supra, 29 Cal.4th at pp. 270–271.) As summarized in Pavlovich: “Indeed, virtually every jurisdiction has held 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.” (Id. at p. 271, fn. omitted.) (See Calder, supra, at p. 790 [“An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California”].)
Applying these principles here, we conclude that substantial evidence failed to satisfy the requirements of the effects test because defendants’ actions were not aimed at appellant in California. The documents submitted by appellant showed that Eurosurgical initiated the French prosecutions against appellant in France. Appellant’s claims for abuse of process and malicious prosecution were premised on the filing of those actions. These circumstances are akin to those in Wallace v. Herron (7th Cir. 1985) 778 F.2d 391 (Wallace). There, the plaintiff, who resided in Indiana, brought a malicious prosecution action in Indiana against the defendant attorneys, who resided and practiced law in California, on the basis of an action in California they had filed against him. (Id. at pp. 392–393.) The appellate court affirmed an order of dismissal for lack of personal jurisdiction, concluding that the defendants lacked the requisite minimum contacts with Indiana. Though one attorney had taken depositions in Indiana, the other attorneys had not traveled to or conducted business in Indiana; nor were they licensed to practice law in Indiana. (Id. at p. 394.) The court rejected the plaintiff’s argument that the defendants serving him with discovery requests in Indiana constituted minimum contacts, noting that “the defendants filed these motions on behalf of their clients in a California court pursuant to a California lawsuit, and it would be unreasonable to require the defendants to appear in Indiana to defend this suit on the basis of such attenuated contacts.” (Ibid.)
The Wallace court distinguished Calder. In that case, actress Shirley Jones, a California resident, sued two National Enquirer employees who resided in Florida. The court ruled that California could exercise jurisdiction over the defendant employees because they relied primarily on California sources for the story, California was the focal point of the story and any harm suffered—including injury to the plaintiff’s reputation—would be felt primarily in California where the National Enquirer had its largest circulation. (Calder, supra, 465 U.S. at pp. 789–791; Wallace, supra, 778 F.2d at p. 395.) In Wallace, in contrast, the defendants brought a California lawsuit on behalf of a California client in a California court. (Id. at p. 395.) Declining to extend Calder to such circumstances, the court reasoned: “We do not believe that the Supreme Court, in Calder, was saying that any plaintiff may hale any defendant into court in the plaintiff’s home state, where the defendant has no contacts, merely by asserting that the defendant has committed an intentional tort against the plaintiff.” (Wallace, supra, at p. 394.)
Other courts addressing personal jurisdiction in the context of abuse of process and malicious prosecution claims similarly conclude that the filing of an underlying lawsuit against a forum state resident is insufficient to confer jurisdiction. (E.g., Allred v. Moore & Peterson (5th Cir. 1997) 117 F.3d 278, 282 (Allred) [Mississippi lacked jurisdiction over Texas and Louisiana attorney defendants in an action brought by a Mississippi resident for abuse of process and malicious prosecution by reason of a prior action brought in Louisiana]; Nelson v. Bulso (E.D.Wis. 1997) 979 F.Supp. 1239, 1245–1246 (Nelson) [Wisconsin lacked jurisdiction over Tennessee attorney in an action for malicious prosecution, abuse of process and defamation brought by a Wisconsin resident by reason of the attorney’s notifying Tennessee authorities and testifying before the Tennessee grand jury which led to the Wisconsin resident’s incarceration in Tennessee]; Denmark v. Tzimas (E.D. La.1994) 871 F.Supp. 261, 265–266 [Louisiana lacked jurisdiction over the defendant, a United Kingdom resident, in an action for malicious prosecution, libel and slander brought by the plaintiff, a Louisiana resident, by reason of criminal proceedings initiated in the United Kingdom after the defendant accused the plaintiff of theft there].) Guided by this authority, we conclude that defendants’ act of initiating the French prosecutions against appellant does not serve as conduct targeted at California.
Appellant relies on several Ninth Circuit cases that seem to suggest—to the contrary—merely directing wrongful conduct against one whom the defendant knows to reside in California suffices to show an intentional act aimed at the forum state. (E.g., Bancroft & Masters, Inc. v. Augusta Nat. Inc. (9th Cir. 2000) 223 F.3d 1082, 1087 (Bancroft & Masters) [express aiming “requirement is satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state”].) Appellant construes this authority to mean that express aiming requires no more than intentional conduct directed at a forum state resident. But a close reading of those cases reveals that appellant’s construction is too broad. Rather, the cases require that the defendant expressly aim its conduct at the plaintiff in the forum state.
For example, in Yahoo! v. La Ligue Contre Le Racisme (9th Cir. 2006) 433 F.3d 1199 (Yahoo!), Yahoo sought a declaratory judgment in federal district court in California that two orders issued by a French court were unenforceable. The court found that it had jurisdiction over the defendants, two French entities that had brought suit in France and received orders requiring Yahoo to remove all images and text relating to Nazi artifacts. (Id. at p. 1202–1203.) Addressing the express aiming requirement, the court concluded that the combination of defendants’ sending a cease and desist letter to Yahoo in California, serving Yahoo in California and obtaining orders that required Yahoo to take action in California sufficed to establish that defendants’ acts were expressly aimed at the forum state. (Id. at pp. 1208–1209.) Importantly, the court placed great weight on the third act, finding it “most important” that the French orders required Yahoo to perform significant acts in California, such as making changes to its servers located in California. (Id. at p. 1209.)
Here, appellant has not identified any conduct by Viart, Weissberg or WGZ that was directed to him in California. Rather, according to appellant’s own declaration, defendants intended to “pressure me in France, because I am a French citizen and own property there” and hoped to keep appellant “tied up for years in the French criminal courts . . . .” The absence of evidence showing that defendants expressly aimed their conduct at appellant in California distinguishes this case from those, including Yahoo!, relied on by appellant. (See Dole Food Co., Inc. v. Watts (9th Cir. 2002) 303 F.3d 1104, 1111–1112 [express aiming requirement satisfied where the defendants, knowing that Dole’s principal place of business was in California and its decision makers were located there, communicated directly with Dole’s California managers to induce them to implement a new importing system and contract, and the consequences of Dole entering into that contract formed the basis of its fraud complaint]; Bancroft & Masters, supra, 223 F.3d at pp. 1087–1088 [express aiming requirement satisfied by the defendant’s sending a cease and desist letter to the plaintiff in California, with knowledge that the plaintiff’s principal place of business was in California]; Lyddon v. Rocha-Albertsen (Oct. 30, 2006, No. 1:03-CV-05502 OWW TAG) 2006 U.S. Dist. Lexis 78957 [express aiming requirement satisfied where one of the defendant attorneys, both of whom were residents of Mexico, formerly represented and met with the plaintiff, a California resident, in California concerning an action to enforce a fraudulently procured promissory note and the other attorney was a coconspirator and sought to enforce the promissory note for the sole purpose of causing injury to plaintiff and his business in California].)
We reject appellant’s contention that his allegations and declaration discussing defendants’ motivation for initiating the French prosecutions sufficed to show express aiming. Appellant alleged in his complaint and averred in his declaration that “[d]efendants came up with the idea of filing a multitude of criminal charges against [Bertranou] in different cities in France for various improbable or imaginary offenses or based on claims which Eurosurgical had already lost in the California Actions. By doing so, Defendants could conceivably keep [Bertranou] tied up for years in the French criminal courts, answering summonses, fighting charges, spending money on legal fees, being away from [his] family and remaining in jeopardy of fines or even jail time.” But as aptly summarized in Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232–1233: “When a nonresident defendant challenges personal jurisdiction the burden shifts to the plaintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. [Citation.] This burden must be met by competent evidence in affidavits and authenticated documentary evidence. An unverified complaint may not be considered as an affidavit supplying necessary facts. [Citation.]” Furthermore, even a declaration may not suffice as evidence that the necessary jurisdictional criteria have been met if it consists of “vague assertions of ultimate facts rather than specific evidentiary facts . . . .” (Id. at p. 1233; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212 [statements made under oath supporting jurisdiction may be disregarded if the facts are based on hearsay and made on information and belief].)
Furthermore, substantial evidence supported the trial court’s conclusion that Viart’s, Weissberg’s and WGZ’s other contacts with California were insufficient to confer jurisdiction. (See Yahoo!, supra, 433 F.3d at p. 1207 [under the Calder effects test, the court “must evaluate all of a defendant’s contacts with the forum state, whether or not those contacts involve wrongful activity by the defendant”].) Viart’s limited contacts with California had been in his capacity as an officer of Eurosurgical and occurred primarily as a result of disputes relating to the agreement between OrthoTec and Eurosurgical. In order to subject a corporate officer to personal jurisdiction on the basis of a corporate act, “[t]he act must be one for which the officer would be personally liable and the act must in fact create contact between the officer and the forum state.” (Seagate Technology v. A.J. Kogyo Co. (1990) 219 Cal.App.3d 696, 703–704.) There was no evidence that Viart’s contacts with California—including his one meeting with appellant on Eurosurgical’s behalf, his attendance at a trade show and his attendance at Eurosurgical’s trial—would subject him to personal liability. (Cf. F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 797 [“In the absence of a showing of fraud or injustice, courts will generally respect the presumption of corporate separateness in a jurisdictional analysis”].) Moreover, beyond Weissberg’s two trips to California for vacation, there was no evidence of any contact with California by Weissberg and WGZ, and thus no evidence that they expressly aimed any conduct toward the forum state. (See Sher v. Johnson (9th Cir. 1990) 911 F.2d 1357, 1366 [California lacked jurisdiction over individual law partners of law firm that represented the plaintiff, a California resident, where individuals’ contact with California consisted of making phone calls and writing letters to the plaintiff and traveling to California three times to meet with him].) Accordingly, appellant failed to meet his burden to establish the first and second prongs of the Calder effects test to show an intentional act expressly aimed at the forum state.
Finally, there was no substantial evidence establishing the third prong of the Calder effects test that the defendants caused harm that they knew would likely be suffered in the forum state. (See Schwarzenegger, supra, 374 F.3d at p. 803.) Appellant argues that because defendants knew he was a California resident, they necessarily knew that any harm resulting from the French prosecutions would be suffered in California. Allred, supra, 117 F.3d at page 282, rejected a similar argument, observing that “‘[c]onsequences stemming from the actual tort injury do not confer personal jurisdiction at the site or sites where such consequences happen to occur.’ [Citation.]” Illustrating this point, in Nelson, supra, 979 F.Supp. 1239 the defendant, a Tennessee resident, initiated criminal proceedings in Tennessee against the plaintiff, a Wisconsin resident. The court rejected the plaintiff’s argument that Wisconsin had jurisdiction over the defendant “because [the defendant] intended his actions in Tennessee to injure the plaintiff in Wisconsin, or in other words, because [the defendant] directed his actions at a Wisconsin resident.” (Id. at p. 1244.) In the plaintiff’s action for malicious prosecution and abuse of process filed in Wisconsin, the court concluded that jurisdiction over the defendant was not established by the plaintiff’s suffering consequences of the defendant’s conduct in Wisconsin—including that he was arrested in Wisconsin, placed in a Wisconsin jail and brought before a Wisconsin court as a result of the arrest warrant issued in the Tennessee proceedings. (Id. at pp. 1243–1244.) Likewise here, the fact that appellant may have felt some emotional or financial consequences of the French prosecutions in California was insufficient to show harm suffered in the forum state. (Id. at p. 1245; accord, Lott v. Burning Tree Club, Inc. (D.D.C. 1980) 516 F.Supp. 913, 916–917 [District of Columbia lacked jurisdiction over a Maryland resident who reported a theft in Maryland resulting in the arrest and detention of the plaintiff, a District of Columbia resident].)
B. Relatedness of the Forum Contacts to the Controversy.
Although the absence of substantial evidence supporting a finding of purposeful direction essentially ends the inquiry, we briefly address the two remaining criteria necessary to establish specific jurisdiction. The next question is whether appellant’s claims are related to or arise out of defendant’s forum contacts. (Pavlovich, supra, 29 Cal.4th at p. 269.) “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. Rather, as long as the claim bears a substantial connection to the nonresident’s forum contacts, the exercise of specific jurisdiction is appropriate.” (Vons, supra, 14 Cal.4th at p. 452; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th 423, 441.)
Appellant proffered no evidence to show that Weissberg’s or WGZ’s forum contacts—consisting solely of Weissberg’s two vacation trips to California—bore any relation to the French prosecutions. The evidence purporting to link Viart’s forum contacts with the French prosecutions was appellant’s declaration opining that defendant came up with a “scheme” to pressure him to abandon or settle the state court action and the federal court action by initiating charges against him in France. “These general statements of belief are legally inconsequential. Such statements do not operate to prove the facts that the speaker merely believes to be true. [Citation.]” (Simons v. Steverson (2001) 88 Cal.App.4th 693, 712–713.) Moreover, even if it had any evidentiary value, appellant’s declaration failed to show how the French prosecutions were sufficiently related to Viart’s handful of trips to California.
The circumstances here stand in contrast to those in Vons, supra, 14 Cal.4th 434, where the court held that California could exercise jurisdiction over out-of-state Jack in the Box franchisees in a tort action stemming from food poisoning incidents. After Foodmaker, a corporation having its principal place of business in California and of which Jack in the Box is a division, sued several meat suppliers, including Vons, for providing contaminated meat, Vons cross-complained against the franchisees alleging that they failed to follow government and industry standards for cooking the meat. (Id. at pp. 441–442.) Addressing the relatedness requirement, the court concluded that Vons demonstrated a substantial connection between the franchisees’ California contacts and its tort claims against the franchisees, explaining that it was directly as a result of the franchisees’ ongoing business relationship with Foodmaker that Vons and the franchisees became joint tortfeasors and that “the franchise relationship, with its uniform standards for cooking food, training employees, and buying equipment, itself was a source of injury to Vons.” (Id. at pp. 456, 457.) Here, on the other hand, beyond appellant’s speculating as to Viart’s motive, there was no showing of a substantial relationship between Viart’s forum contacts on behalf of Eurosurgical and the French prosecutions which form the basis of appellant’s claims.
C. Reasonableness.
As explained in Schwarzenegger, supra, 374 F.3d at page 802, if a plaintiff fails to satisfy either of the first two prongs of the specific jurisdiction three-prong test, “personal jurisdiction is not established in the forum state. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable. [Citation.]” Though we have concluded that appellant failed to meet his burden on each of the first two prongs, we briefly address the question of reasonableness. We find a compelling case that it would be unreasonable for California to exercise personal jurisdiction over French citizens and a French law firm by reason of claims arising from the initiation of criminal proceedings in France,
The Ninth Circuit has developed a seven-factor test to determine whether the exercise of jurisdiction comports with fair play and substantial justice and is therefore reasonable: “(1) the extent of the defendants’ purposeful injection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.” (Dole Food Co., Inc. v. Watts, supra, 303 F.3d at p. 1114.) In California, “[w]e are even more cautious in our application of the law of personal jurisdiction when the nonresident defendant is from another nation rather than another state. [Citations.]” (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 109.)
First, because we have concluded that appellant failed to establish that defendants purposefully directed their conduct to the forum state, we must conclude that there has been no purposeful interjection. (See Sinatra v. National Enquirer, Inc. (9th Cir. 1988) 854 F.2d 1191, 1199 [“[t]he factor of purposeful interjection is analogous to the purposeful direction analysis”].) Second, while we do not give great weight to this factor, it would be burdensome for Viart, Weissberg and WGZ to litigate in California. Although courts have recognized that “‘modern advances in communications and transportation have significantly reduced the burden of litigating in another country,’” they continue to find that such a burden continues to exists with respect to defendants in other countries and weighs against a finding of jurisdiction. (Harris Rutsky & Co. Ins. Serv. v. Bell & Clements (9th Cir. 2003) 328 F.3d 1122, 1132, 1133; see Glencore Grain v. Shivnath Rai Harnarain (9th Cir. 2002) 284 F.3d 1114, 1125–1126 (Glencore Grain) [burden on Indian defendant “to defend suit in California appears great, given that it is incorporated in India, owns no property in the forum, and has no employees or persons authorized to act on its behalf there”]; Ballard v. Savage (9th Cir. 1995) 65 F.3d 1495, 1501 [finding burden of defending factor weighed slightly in favor of Austrian bank, even though it presented no evidence on the extent of its burden to litigate in California]; Roth v. Garcia Marquez (9th Cir. 1991) 942 F.2d 617, 623 [burden factor weighed in foreign defendants’ favor where they maintained no agent or office in the United States].)
Third, “‘[w]here, as here, the defendant is from a foreign nation rather than another state, the sovereignty barrier is high and undermines the reasonableness of personal jurisdiction.’ [Citation.]” (Glencore Grain, supra, 284 F.3d at p. 1126; accord, In re Automobile Antitrust Cases I & II, supra, 135 Cal.App.4th at p. 109.) Fourth, however, defendants failed to show that California lacks an interest in adjudicating this matter. (See Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1394 [California had interest in adjudicating abuse of process claim stemming from actions occurring in another state that involved the procuring of a foreign judgment against California residents]; see generally Sinatra v. National Enquirer, Inc., supra, 854 F.2d at p. 1200 [“California maintains a strong interest in providing an effective means of redress for its residents [who are] tortiously injured”].) Nonetheless, addressing the fifth factor, the matter could be most efficiently resolved in France—the site of the witnesses, pleadings and other documents relating to the French prosecutions. (See Core-Vent Corp. v. Nobel Industries AB (9th Cir. 1993) 11 F.3d 1482, 1489 (Core-Vent)[“In evaluating this factor, we have looked primarily at where the witnesses and the evidence are likely to be located”].)
Sixth, courts have tended to discount the convenience to the plaintiff, noting that “‘no doctorate in astrophysics is required to deduce that trying a case where one lives is almost always a plaintiff’s preference.’ [Citation.] A mere preference on the part of the plaintiff for its home forum does not affect the balancing; indeed, this factor is insignificant . . . .” (Core-Vent, supra, 11 F.3d at p. 1490; see also Mitan v. Feeney (C.D. Cal. 2007) 497 F.Supp.2d 1113, 1123 [“Inconvenience to the plaintiff is given little weight”].) The plaintiff bears the burden on the seventh and final factor—the unavailability of an alternative forum. (Core-Vent, supra, at p. 1490.) Appellant has not explained why he would be precluded from litigating his claims in France and has tried to evade his burden by deeming this factor “neutral.” Accordingly, this factor weighs in favor of defendants. (See ibid. [“Core-Vent has not met its burden of proving that it would be precluded from suing the doctors in Sweden. ‘Doubtless [it] would prefer not to, but that is not the test’”].)
Accordingly, as only one of the factors weighs in appellant’s favor, while the balance supports defendants, an exercise of specific jurisdiction over defendants would not comport with notions of fairness. Where the factors were similarly balanced, the court in Core-Vent, supra 11 F.3d 1482 held it would be unreasonable to exercise jurisdiction over Swedish doctors who allegedly published libelous statements about the plaintiff, a California corporation, in an international medical journal. Noting that while California maintains a strong interest in providing a forum to those injured in its state, that interest was outweighed by a showing that the defendants were citizens of a foreign country who lacked connections to the United States, their purposeful interjection into the forum state was very limited, and requiring them to submit to the jurisdiction of the court would impose substantial burdens on them and interfere with a foreign nation’s sovereignty. (Id. at p. 1490; see also Mitan v. Feeney, supra, 497 F.Supp.2d at p. 1123 [unreasonableness demonstrated where five out of seven factors weighed against jurisdiction].)
Accordingly, even if we were to conclude that appellant met his burden to show that defendants purposefully directed their actions at the forum and that appellant’s claims arose out of the defendants’ forum contacts, we would conclude that an exercise of jurisdiction over defendants would be unreasonable.
DISPOSITION
The order quashing the service of summons is affirmed. Defendants are entitled to their costs on appeal.
We concur:, P. J. BOREN, ASHMANN-GERST, J.