Opinion
A134145
05-14-2013
SELMA OZER, Plaintiff and Appellant, v. FRANZ ZENZ et al. Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County
Super. Ct. No. CGC-08-477966)
Plaintif Selma Ozer (Ozer) is the widow of Ihsan Ozer who, along with 11 others, was killed in a helicopter crash in Afghanistan. Tryco International, Inc. operated the helicopter, and Ozer sued it (and related Tryco individuals and entities) in San Francisco Superior Court. Defendants filed four separate motions to quash for lack of jurisdiction. Ozer opposed the motions, fundamentally arguing that Tryco impliedly consented to jurisdiction in California by its conduct in two other San Francisco lawsuits arising out of the crash. The trial court granted the motions to quash. We reverse.
BACKGROUND
The Facts
This case arises out of the crash of an Mi-8 helicopter in Afghanistan on July 26, 2006. Tryco operated the helicopter pursuant to a contract with Fluor International, Inc. (Fluor), a California corporation, which was apparently a USAID nongovernment operator in contract with the United States. Paragraph 29 of Tryco's contract with Fluor, entitled "Laws and Regulations," provided in pertinent part that "[t]his contract shall be subject to the law and jurisdiction of the State of California, unless expressly designated otherwise in this contract."
Twelve people were killed in the helicopter crash, including, as pertinent here, Lourens Du Plessis, George Van Schalkwyk, and Ihsan Ozer. Du Plessis and Van Schalkwyk were South African nationals, Ozer a Turkish national. All three were married. All three had children. And all their widows and children came to be represented by Patricia Barlow, a San Francisco attorney.
By e-mail dated October 27, 2006, Barlow wrote to Franz Zenz, at Tryco, McLean, Virginia, advising of her representation (specifically of the Du Plessises), and closed the letter with the observation that she had "tried several times to contact your office in Kabul. . . ," to no avail.
Franz Zenz and his wife were alleged to be principals of the Tryco-related entities, which were alleged to be Tryco, Inc., Tryco International, Inc., and Tryco International Incorporated. For ease of reference we refer to "Tryco."
The response came from Tim Brymer of Clyde & Co., a law firm in London, and in late 2006 Barlow and Brymer apparently began communicating about the crash, and the possibility of settlement. As represented by Barlow in a January 24, 2007 letter to Brymer: "Well before Christmas you told me to make a formal demand. I did that based on countless hours of reserch [sic]and factual investigation. I also gave you a copy of every piece of research that I had relied on and every piece of deposition transcript I used. Gathering all of these documents and obtaining court files and deposition transcripts is a costly process and I gave you every piece of reserch [sic] at no cost to your underwriters in an attempt to move this matter forward and get a resolution. You had told me that once you received my demand your clients would make a formal response. I have received to date is not a formal response [sic]."
After reciting some displeasure with Brymer's unkept commitments, Barlow's letter went on: "I told you that Charmaine du Plessis would not settle her claims for this low figure—which no court in the US would impose. You then asked me for a balll [sic] park figure of settlement and I told you that if you came back in the US$1.5 million to US$2 million range that we could likely get this case settled now with no further costs to your underwriters or scandelous [sic]proceedings against Zenz et al. You then made a comment about settling the cases 'globally' and I told you that each case has different damages and this cannot be done where there are minors involved. [¶] You agreed to talk to your underwriters in regard to the figure of likely settlement that I gave you for Charmaine du Plessis and her minor children.
Following more expressions of unkept commitments, Barlow's letter concluded as follows: "These are my concerns. However if you are able to provide me the materials promised before the meeting and get a reasonable offer on the table for Charmaine du Plessis I would be happy to meet with you. This will require me driving five hours from Tahoe in Sunday afternoon teraffic [sic] so I will not do this to be meet [sic]by another low ball offer."
According to Barlow, "communications continued by telephone and email" and "on February 18th 2007 . . . Brymer travelled from London to San Francisco for settlement discussions of these claims." Nothing was settled at that time, and the record does not reveal what occurred during the remainder of 2007, or early 2008.
Sometime in June 2008, another meeting was held in Barlow's office discussing possible settlement, this with Russ Mirabile apparently representing Tryco. And that meeting was productive, as confirmed by Brymer himself in his letter to Barlow of June 16, 2008, which letter provides in its entirety as follows:
"LOSS OF MI-8 MTV HELICOPTER, REGISTRATION YA-TAD
"SOUTH EASTERN AFGHANISTAN 27 JULY 2006
"YOUR CLIENTS: DU PLESSIS AND VAN SCHALYWYK [sic]
"I refer to the without prejudice negotiations which took place last week in your office in conjunction with Russ Mirabile.
"On behalf of Tryco, Fluor and their respective Insurers, I confirm the potential settlement reached as set out below.
"Insofar as claims made on behalf of the du Plessis family are concerned, the following amounts are offered in full and final settlement of the claims intimated to date, namely:
"Darius du Plessis . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
The copy of the letter in the record has all amounts blacked out.
"Chalou du Plessis . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
"Charmaine du Plessis . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
"TOTAL . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
"Insofar as the claims put forward on behalf of the van Schalywyk [sic] family are concerned, the following amounts are offered on a like basis, namely:
"Matthew van Schalywyk [sic] . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
"Karen Laubscher (de facto wife) . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
"TOTAL . . . . . . . . . . . . . . . . . . . USD$ XXXXXX
"Provision of the aggregate settlement sum of USD$ XXXXXX is subject to the following conditions:
"(i) The terms of the settlement are subject to a stipulation that these will be treated in the utmost confidence and shall not be communicated to any third party whatsoever, specifically any and all Claimants, together with lawyers, attorneys, including both local or referring counsel, as well as any other parties, advisers or entities involved in any way with legal proceedings arising from the above captioned accident in any jurisdiction worldwide;
"(ii) Court approval is obtained in relation to payments made to and investments contemplated for the benefit of minor interests involved under the law and procedure applicable in California (and if deemed appropriate South Africa).
"(iii) Execution of a Release acknowledging that this settlement is in full and final settlement of any and all claims, demands, costs and expenses arising or to arise on behalf of the individual Claimants referred to above as a result of the above captioned accident, together with an express acknowledgment that this settlement is made without any admission of liability therefore.
"I will provide the necessary draft of documentation in relation to (i) and (iii) above. I understand that you will likewise respond to the documents and procedures necessary to comply with (ii) insofar as Californian law and procedure are concerned.
"The position in relation to the need for South African Court approval is still under consideration and I will revert in this connection shortly."
The record does not reveal what next occurred in connection with the settlement. What it does reveal is that, as the statute of limitations was apparently expiring as to the claims of the three widows, on July 28, 2008. Barlow filed three lawsuits in San Francisco County: (1) no. CGC-08-477965, on behalf of Charmaine Du Plessis; (2) no. CGC-08-477966, on behalf of Ozer; and (3) no. CGC-08-477967, on behalf of Karen Laubscher, the widow of van Schalkwyk.
Meanwhile, as minors were involved in the settlements, Barlow filed two petitions for approval of minor's compromise, filed in San Mateo County. The petitions were brought by Marie Magali Michaud Van Schalkwyk as the guardian ad litem of Matthew van Schalkwyk (case no. CIV 475722) and Charmaine Du Plessis as the guardian ad litem of Chalou Du Plessis (case no. CIV 475723).
According to Barlow, she filed them in San Mateo because she could obtain a hearing date within three days of filing.
On August 21, 2008, the San Mateo County Superior Court approved the two minor's compromises, each in the amount of $400,000. The court ordered that the settlement funds be deposited into a blocked account at Citibank in San Francisco until majority was reached, and retained jurisdiction over the deposits until majority.
The court still has jurisdiction over the Matthew van Schalkwyk settlement as he is still a minor.
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Though not in the record, Barlow must have communicated with Brymer concerning the minor's settlements. For, and despite his letter of June 16, 2008, confirming the settlements and their amounts—indeed, confirming that he would prepare the necessary documentation—on August 26, 2008, Brymer wrote to Barlow, which letter provided in pertinent part as follows:
"Your statement that Californian law requires minor settlements to involve approval by the Court is correct only assuming that Californian law applies to the settlement which it does not.
"Likewise, the position which you have taken that settlement of claims relating to an infant or minor who is a citizen and resident of South Africa must be approved by a Californian Court because you happen to be admitted to practice in California is, likewise incorrect and wrong. [¶] . . . [¶]
"I do not understand why you have filed these papers with the Californian [sic]court when there is no settlement agreement between the parties.
"I stand by the position which I have adopted from the outset that we have not and will not agree to the application of Californian law or the involvement of the Californian Courts in connection with the settlement of the South African claims.
"I would be grateful if you would kindly acknowledge receipt of this communication."
The record does not reveal what, or even whether, Barlow responded, but according to her briefing here, "[s]ettlement agreements and releases were executed and sent to Brymer in London, but these settlements then sat in limbo without any payments for a considerable period of time. [¶] . . . [¶] At some point during 2009, Brymer stopped communicating . . . and . . . Tryco appointed attorney Kevin Sutherland . . . of Clyde & Co in San Francisco as counsel to deal with the above described uncompleted settlements. Sutherland was assisted by associate attorney Nicholas Lieberknecht . . . ." Then, apparently following some telephone conferences with Sutherland, Barlow received a letter from the San Francisco offices of Clyde & Co, signed by Lieberknecht, which begins as follows: "Our review of these documents has revealed that the Du Plessis action filed in the San Francisco Superior Court, Case No. CGC-08-477965, names only Charmaine and Darius Du plessis [sic] as plaintiffs, excluding the minor child Chalou. Likewise, the Laubscher action filed in San Francisco Superior Court, Case No. CGC-08-477967 does not include the minor child Matthew Van Schalkwyk. The fact that Chalou and Matthew are not named as parties in the litigation will not allow for a dismissal with prejudice of their cases if and when the settlements are finalized."
The next paragraph of Lieberknecht's letter then states: "In light of the foregoing, we are prepared to recommend to our clients that they proceed with a settlement under California law . . . . If we can verify your representation of the minors, our clients will require that they be added as plaintiffs to one of the lawsuits pending in San Francisco Superior Court so that their claims can be dismissed with prejudice with the other plaintiffs if and when a settlement is finalized." That paragraph also addressed some errors in the minor's compromise orders of the San Mateo Superior Court and required judicial action in this regard: "You have acknowledged to us certain errors contained in the orders granting the petitions for minors' compromise of disputed claims. These errors need to be corrected and verification received if a settlement is to be agreed. (Exhibit A and AA Tab CC 1467)"
As will be seen, Tryco's attorneys apparently agreed that they would pay Barlow for any filing fees incurred in carrying out the conditions set forth in Lieberknecht's letter.
Barlow set about meeting the conditions required by Lieberknecht, doing the following: (1) on October 27, 2009, she filed an application in the Van Schalkwyk minor's settlement in San Mateo Superior Court, and the court corrected the order; (2) on October 28, 2009, she filed an application in the Du Plessis minor's settlement, which was amended by the court by adding the name and address of Citibank; and (3) on October 29, 2009, (a) the minor Chalou Du Plessis's wrongful death claim was added as by amendment to case no. CGC-08-477965, and (b) a wrongful death lawsuit was filed on behalf of Matthew Van Schalkwyk and a summons issued (case no. CGC-09-0493935).
As represented by Barlow, "After these filings were complete on October 29 2009 [she] took these pleadings to Clyde & Co and attorney Lieberknecht . . . along with the Request for Dismissal in the Van Schalwkyk [sic] and DuPlessis [sic] cases. [She] stayed with Lieberknecht in a conference room while he reviewed the lawsuits and dismissals and then Sutherland joined the meeting and Lieberknecht told Sutherland the papers were all in order. The settlement funds were then paid to the DuPlessis [sic]and Van Schalwyk [sic] plaintiffs." Counsel at Clyde & Co. then filed the dismissals of both cases, served a copy of the dismissals on Barlow, and filed a proof of service in the San Francisco Superior Court.
By check dated November 24, 2009, Barlow was reimbursed by Clyde & Co for the filing fee of $370 paid on its behalf to file the Van Schalkwyk lawsuit.
The Proceedings Below
As noted above, on July 28, 2008, a complaint was filed in San Francisco Superior Court on behalf of Ozer, followed by a first amended complaint. The complaint alleged that Zenz is an individual doing business under fictitious names; that defendants have residential or business ties to the states of Colorado, Virginia, New York, and Massachusetts and to the foreign countries of the United Arab Emirates and Afghanistan; and that defendants were "in the business of procuring United States Government contracts for medical supply and fuel supply in the reconstruction of countries such as Kuwait and Afghanistan." The complaint also alleged that defendants owned and operated the Mi-8 helicopter involved in the crash, which was used "for regular passenger and charter services in Afghanistan."
On August 25, 2011, four separate motions to dismiss were filed on behalf of the Tryco defendants, all set for hearing on the same day. As pertinent to the issue here, the motions asserted as follows: "Even assuming that plaintiff served the summons and first amended complaint on Tryco . . . and justifiably delayed prosecution of the case, the Court lacks personal jurisdiction over Tryco . . . because Tryco . . . has never conducted business in the State of California and otherwise has no contacts with the State of California sufficient to justify the exercise of jurisdiction."
Ozer filed a joint opposition to all motions, which included a memorandum of points and authorities and declarations of attorney Barlow. The legal argument included the fundamental position, set out on the first page of the opposition in bold face, that a basis to subject Tryco to jurisdiction in California was "consent." In claimed support, Ozer cited and discussed numerous cases, including Nobel Farms, Inc. v. Pasero (2003) 106 Cal.App.4th 654; General Contracting & Trading Co. v. Interpole, Inc. (1st Cir. 1991) 940 F.2d 20; Szynalski v. Superior Court (2009) 172 Cal.App.4th 1 (Szynalski);and Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482. Ozer's memorandum concluded that numerous factors supported jurisdiction in California, the last of which were these: "[T]he 2 trips by Brymer to California to engage in and settle the DuPlessis, Laubscher and Van Schalwyk [sic] cases; the orchestration by Mr. Sutherland through plaintiff's counsel for correction of the DuPlessis and Van Schalwyk [sic] minor's compromise orders, and the initiation of the two minor's lawsuits so that the Zenz/Tryco defendants would have the benefit of a California dismissal and that the minor's compromises could not be reopened at the minor's majority due to technical errors in the court orders; the appointment of Mr. Sutherland as counsel to assist in the execution of the DuPlessis, Laubscher and Van Schalwyk [sic] settlements. All of these acts are clearly purposeful availment of the benefits and protections of Calfiornia law for the Zenz/Tryco defendants. Furthermore the consent to the jurisdictional contract clause, together with the settlement and subsequent activities of Brymer, and Mr. Sutherland's actions amount to 'express consent' (imputed to principals Zenz/Tryco) to the jurisdiction of this court."
The motions came on for hearing on September 26, 2011, prior to which the court had issued four essentially identical tentative rulings. The hearing began with the court reading one such ruling, as follows: "Okay. And these are all four defendant's motion to squash [sic] service of summons or to stay or dismiss. And the Court's tentative ruing in each of these matters is to grant the motion. Plaintiff fails to demonstrate general or specific jurisdiction. No general jurisdiction exists because plaintiff does not highlight any systematic and continuing contact from defendant. No specific jurisdiction is shown. [¶] Plaintiff fails to prove that defendant purposefully derived benefit from California activities or purposefully avail [sic] itself of the privilege of conducting activities in California and the causes of action arose out of the defendant's contacts with California. Plaintiff merely shows attenuated contacts with California that are unrelated to this lawsuit. The Fluor contract does not apply to plaintiff and is irrelevant because Plaintiff is neither a signatory nor a third party beneficiary."
There followed almost 45 minutes of argument, most of which was by plaintiff's counsel Barlow, who vigorously argued the cases in her opposition. Tryco's counsel responded briefly, for a total of three pages, concluding that "we don't think there is specific jurisdiction here or is there a basis for general jurisdiction."
Barlow then summed up in reply: "Thank you, Your Honor. Mr. Hession here doesn't address consent, and that is a separate basis as I think I pointed out. It doesn't require minimum contact, and it's very evident that that existed here and we come within the four corners of both Nobel Farms and Szynalski case. [¶] Also the lawsuit, the Matthew Van Schalkwyk was initiated, I think this was very clear in my papers, was initiated at the request of Mr. Sutherland there was no lawsuit filed by the two because there was no statute of limitations issue for them because they get two years after they turned 18. And neither Chalou du Plessis nor Matthew Van Schalkwyk were near that age. So Chalou has since that time turned 18, this year, but Matthew hasn't. And, I mean, if you look at the dates the settlement for—back in June of 2007, there were no lawsuits filed at all. So we only actually filed any lawsuit for the adults because Mr. Brimmer went back on his statute of limitations extension."
On October 6, 2011 the court entered four orders granting the motions to quash. The orders read in their entirety as follows:
"1. Plaintiff fails to demonstrate general jurisdiction because plaintiff does not highlight any systematic and continuing contact from defendant [Tryco].
"2. Plaintiff fails to demonstrate specific jurisdiction. Plaintiff fails to prove that defendant [Tryco] purposefully derived benefit from California activities or purposefully availed itself of the privilege of conducting activities in California and the causes of action arose out of defendant's contacts with California. Plaintiff merely shows attenuated contacts with California that are unrelated to this lawsuit. The Fluor Contract does not apply to plaintiff and is irrelevant because plaintiff is neither a signatory nor a third party beneficiary.
"3. Plaintiff fails to demonstrate jurisdiction by defendant's consent. Defendant's counsel's prior settlement discussion in California and relevant California compromise approval orders with regard to cases other than the instant one at bar are insufficient to constitute consent as a matter of law."
Ozer filed a timely notice of appeal.
DISCUSSION
The Law and the Standard of Review
Code of Civil Procedure section 410.10 provides that "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." This section "manifests an intent to exercise the broadest possible jurisdiction, limited only by constitutional considerations." (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445.) As has often been observed, there are no hard and fast rules that pertain, no black and white law. Rather, the answer to the jurisdiction question lies in "traditional notions of fair play and substantial justice." (Von's Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons), quoting Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316 (Internat. Shoe).)
Our Supreme Court elaborated on this in Pavlovich v. Superior Court (2002) 29 Cal.4th 262: "Under the minimum contacts test, 'an essential criterion in all cases is whether the "quality and nature" of the defendant's activity is such that it is "reasonable" and "fair" to require him to conduct his defense in that State.' (Kulko v. California Superior Court (1978) 436 U.S. 84, 92, quoting Internat. Shoe, supra, 326 U.S. at pp. 316-317, 319.) '[T]he "minimum contacts" test . . . is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite "affiliating circumstances" are present.' (Kulko, 436 U.S. at p. 92, quoting Hanson v. Denckla (1958) 357 U.S. 235, 246 (Hanson).)'[T]his determination is one in which few answers will be written "in black and white. The greys are dominant and even among them the shades are innumerable." ' (Kulko, 436 U.S. at p. 92, quoting Estin v. Estin (1948) 334 U.S. 541, 545.)" (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 268.)
Where there is no conflict in the evidence, the question of jurisdiction is one of law, and we independently review the record. (Von's, supra, 14 Cal.4th at p. 449; Sea Foods Co., Ltd. v. O.M. Foods Co., Ltd. (2007) 150 Cal.App.4th 769, 785 (Sea Foods).)That review leads to the conclusion that the trial court erred in granting the motions to quash.
Tryco Consented to Jurisdiction in California
Consent is a well-recognized basis for the exercise of jurisdiction over a nonresident defendant. (Szynalski, supra, 172 Cal.App.4th 1, 7, and authorities there collected; Sea Foods, supra, 150 Cal.App.4th at p. 786; Nobel Farms, supra, 106 Cal.App.4th at p. 658.) Such consent "may be expressed by words or by conduct." (Rest. 2d Conf. of Laws, § 32, com. a, p. 130; Szynalski, supra, at p. 7; Nobel Farms, supra, at p. 658.) "Specifically, when a party has availed itself of the courts of California, that party is held to have impliedly consented to jurisdiction in any action related to the action it brought." (Sea Foods, supra, at p. 786; see also Nobel Farms, supra, at pp. 658-659.)
As noted, consent was the primary basis of Ozer's position here, set forth on the first page of her opposition. This was the basis argued at length at the hearing. Without discussion or elaboration, the trial court dealt with Ozer's contention in two lines of its order, concluding that "Plaintiff fails to demonstrate jurisdiction by defendant's consent. Defendant's counsel's prior settlement discussion in California and relevant California compromise approval orders with regard to cases other than the instant one at bar are insufficient to constitute consent as a matter of law."
That holding, we conclude, does not accurately reflect all that happened here, as set out at length above. In short, Tryco required action in California, action from which it benefitted—a benefit for which it paid. In the words of the cases, Tryco availed itself of California. And since it did, to hold it subject to jurisdiction here comports with notions of fair play and substantial justice. It is reasonable.
Many cases—some cited by Tryco, some not—support the conclusion we reach. The following are illustrative:
Nobel Farms, supra, 106 Cal.App.4th 654, where Nobel Farms hired Pasero, a Mexican attorney, to pursue an insurance claim for fire damage to its warehouse. Pasero suspended his work, claiming unpaid legal bills, and Nobel Farms sued him for negligence in failing to file a complaint before the statute of limitations had run. (Id. at p. 656.) Pasero filed a motion to quash. The trial court granted the motion, despite that Nobel Farm's opposition included evidence that Pasero had filed a lawsuit in California to recover his unpaid legal fees. (Id. at p. 657.) The Court of Appeal reversed, finding that "Pasero availed himself of the benefits of a California court in his earlier attorney fee action." (Id. at p. 659.) After rejecting Pasero's argument that he had "no choice" but to sue in California, the court concluded: "Even assuming the argument is correct, it merely reinforces our conclusion that Pasero substantially benefited by his utilization of a California forum to resolve his attorney fee dispute." (Id. at p. 660.) Here, as noted, Tryco "substantially benefited" by what it required Barlow to do in California.
Szynalski, supra, 172 Cal.App.4th 1 arose out of the settlement of an earlier class action lawsuit in which Szynalski was among the named defendants. (Id. at p. 4.) That earlier case settled, and the settlement agreement was signed by Szynalski, among others. As part of the settlement agreement the parties agreed to retain a settlement administrator, and also to pay his fees and costs. The administrator later sued Szynalski and others for his unpaid fees. (Id. at p. 5.) Following an unsuccessful attempt to remove the matter to federal court, Szynalski filed a motion to quash, which the trial court denied. The Court of Appeal denied Szynalski's writ petition.
The court's analysis began with citation of many cases standing for the proposition that "a party's presence in the state for settlement negotiations may not necessarily result in personal jurisdiction over the party in that state." (Szynalski, supra, 172 Cal.App.4th at pp. 8-9.) That said, the court observed that "Szynalski's actions in California were more than mere settlement negotiations." (Id. at p. 9.) And, the court concluded: "In addition, Szynalski, by accepting the benefits of a California court-appointed settlement administrator performing services in California as part of a California case, and undertaking to pay the administrator in California, has 'purposefully avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' (Hanson v. Denckla (1958) 357 U.S. 235, 253.)" (Id. at pp. 9-10.)
Vorys, Sater, Seymour & Pease v. Ryan (1984) 154 Cal.App.3d 91 (Vorys)was a case in which Division Five of this court held that the defendants' retention of an Ohio law firm constituted transacting business in that state, and was sufficiently connected with that state so that Ohio's exercise of personal jurisdiction in the subsequent dispute over attorney fees was reasonable. The facts there were that Ryans, a California partnership, claimed title to a horse under an agreement with an Ohio business. Ryans' California attorney arranged for plaintiff, an Ohio law firm, to intervene in an Ohio lawsuit over title to the horse. Ryans, dissatisfied with plaintiff's performance, negotiated its own settlement of the lawsuit, and refused to pay plaintiff's fees. Plaintiff sued Ryans in Ohio, Ryans did not appear, and plaintiff obtained a default judgment, which it later proceeded to enforce in California as a sister state judgment. (Id. at p. 93.)
Ryans filed a motion to quash, which the trial court denied. Our colleagues agreed, holding that Ryans "clearly availed itself of the privilege of acting in Ohio." (Vorys, supra, at p. 94.) It voluntarily intervened in the lawsuit there. It hired an Ohio law firm to do legal work in Ohio, at its request and for its benefit, and it participated in settlement negotiations in Ohio. That was enough: "To justify personal jurisdiction, a plaintiff need not show multiple transactions by defendant within a forum state; a single transaction of business within the state may constitute sufficient contact. [Citations.] Ryans' contract for legal services was sufficiently connected with Ohio so that Ohio's exercise of personal jurisdiction was reasonable. (McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 223.)" (Ibid.)
Daar & Newman v. VRL International, supra, 129 Cal.App.4th 482 was a situation where plaintiff law firm sued its client, an out-of-state corporation, seeking fees for services rendered in defending a personal injury suit. The trial court granted the client's motion to quash. The Court of Appeal reversed, finding that specific jurisdiction existed because (1) the client retained the law firm, which invoked the benefits of California law for a successful outcome; (2) the claim was for fees connected with that representation; and (3) the exercise of jurisdiction was reasonable. (Id. at pp. 492-493.)
Dunne v. State of Florida (1992) 6 Cal.App.4th 1340 was a case in which Division Four of this court reversed a grant of a motion to quash brought by the State of Florida. The Court of Appeal held that California could properly exercise jurisdiction where the State of Florida voluntarily came to California for the express purpose of prosecuting antitrust litigation, contracted with plaintiff to represent it in the litigation, was an active participant in the litigation, and derived substantial economic benefit from the settlements negotiated.
Two cases involving the subject of general jurisdiction are also instructive. The first is Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32 which, collecting an exhaustive number of cases dealing with the question of what constitutes a general appearance, noted that "The Courts of Appeal have described the scope of actions in the litigation process which constitute a general appearance as follows: 'A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed.' " (Id. at p. 52.) The other is California Overseas Bank v. French American Banking Corp. (1984) 154 Cal.App.3d 179, 184: "If the defendant 'raises any other questions, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general.' "
We recognize that any general appearance would only apply to Tryco's actions in the other two cases, and that Tryco's position is not grounded on general jurisdiction principles. We cite the language, however, to illustrate how Tryco's actions in California make it reasonable to subject it to jurisdiction here.
We close with two observations about the overriding notions governing jurisdiction determinations—" ' "traditional notions of fair play and substantial justice." ' " (Von's, supra, 14 Cal.4th at p. 444.) The first is that superimposed on all the above is Tryco's contract which caused it to be operating the helicopter that killed 12 people: the contract with Fluor. As quoted above, that contract provided that it "shall be subject to the law and jurisdiction of the State of California." Thus, any suit by Fluor, Tryco agreed, could be in California. While Ozer is not a third party beneficiary of that contract, it does indicate that holding Tryco subject to California jurisdiction would not violate fair play or substantial justice, as shown by the discussion in In re Oil Spill by the Amoco Cadiz Off Coast of France (7th Cir. 1983) 699 F.2d 909 (Amoco Cadiz).
In Amoco Cadiz French citizens who alleged damage from an oil spill caused by the breakup of a supertanker off the coast of France brought suit in Illinois against defendants Astilleros, the shipbuilder, and Amoco, the operator of the tanker. The shipbuilder moved to dismiss, the trial court denied the motion, and thereafter entered a default judgment against it. The shipbuilder appealed, and the Court of Appeals affirmed, in the course of which it noted as follows:
"The last question we consider is whether the district court had personal jurisdiction over the French plaintiffs' suit against Astilleros . . . . The French plaintiffs' claim is not quasi-contractual and is not being prosecuted in either the place of the wrong or the domicile of one of the parties. But if it seems odd for the French to be suing the Spanish in a court in Chicago because of an oil spill off the French coast, it would also be odd if, though the French can sue Amoco in Chicago and Amoco can bring in Astilleros as a third-party defendant here, the French must go to Spain to sue Astilleros." (Amoco Cadiz, supra, at p. 917.)
Then, after observing that the French plaintiffs were not in the "chain of title" and thus the place of signing of the contract might "seem to be irrelevant to their suit," the court went on: "But they were not harmed just by the defective condition of the ship; they were harmed by Amoco's operation of the ship in its defective condition, and the negotiation and signing of the contract were critical steps in the chain of events that led to the oil spill. So there is a sense in which the spill and resulting damage may be said to arise from the transaction of business in Illinois between Amoco and Astilleros; and if this conclusion is not compelled by, it is at least consistent with, the statutory language . . . ." And, the court concluded, "it does not offend due process." (Amoco Cadiz, supra, at p. 917.)
The second observation is the effect of a contrary decision, the one reached by the trial court, which would leave Ozer without a remedy—apparently a substantial one. While, as noted, the settlement amounts of the Van Schalkwyk and Du Plessis widows were blacked out, they undoubtedly were large, given that the minor's compromises were each $400,000. Given Tryco's conduct in California in connection with those settlements for Barlow's two other clients, for her third client, Ozer, to be treated differently does not seem fair. Or just.
DISPOSITION
The orders granting the motions to quash are reversed. Ozer shall recover her costs on appeal.
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Richman, J.
We concur: ________________
Kline, P.J.
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Haerle, J.