Opinion
H042416
06-28-2018
WADE ROBERTSON, Plaintiff and Appellant, v. WILLIAM C. CARTINHOUR, JR., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-13-CV-256559)
Wade Robertson sued William Cartinhour—a Maryland resident—in Santa Clara County. The trial court granted Cartinhour's motion to quash service of summons on the ground that the court lacked personal jurisdiction over him. For the reasons explained, we will affirm the order.
I. BACKGROUND
Robertson and Cartinhour entered into a written partnership agreement in 2004. The agreement states that the partnership is "[a] District of Columbia Partnership" governed by the laws of Washington, D.C. According to the agreement, Robertson lived in Washington, D.C. at the time it was signed, and Cartinhour in Maryland.
The one-page agreement does not describe the purpose of the partnership or the nature of its business. It provides a method for valuing the services each partner contributes, and states that each agrees to maintain records of those services. The agreement sets the rate for "legal services" at $485 per hour and the rate for "securities/financial consulting" at $500 per hour, but does not otherwise describe the purpose of those services.
Robertson sued Cartinhour in Santa Clara County Superior Court in 2013, alleging that Cartinhour breached the partnership agreement and committed fraud. Cartinhour (who still resided in Maryland) moved to quash service of the summons because the court lacked personal jurisdiction over him. Both parties submitted declarations regarding the jurisdictional issue. Cartinhour's declaration states he is a resident of Maryland and has never been to California. He met with Robertson only in Washington, D.C. and in Maryland. Robertson has filed multiple lawsuits against him in different jurisdictions: Washington, D.C., Maryland, New York, Tennessee, and California. Robertson has not prevailed in any of those lawsuits. In one case, Cartinhour filed a cross-complaint and a jury awarded him $3.5 million in compensatory damages and $3.5 million in punitive damages against Robertson.
Robertson argues that the trial court should not have considered Cartinhour's declaration because it was filed before, not concurrently with, the motion to quash. But the motion to quash indicated it was based on "the pleadings, files, and records" in the action. Regardless, it was not improper for the trial court to consider a relevant declaration filed earlier in the same lawsuit.
Robertson's declaration references a "business venture" between him and Cartinhour but does not further describe it. He states that Cartinhour knew the partnership agreement was to be performed in California and that property related to the partnership was located in California, but he does not explain what performance was due nor identify the property. Robertson asserts that Cartinhour breached the contract and defrauded him, but he does not say what conduct constituted the breach nor specify the representations he claims were fraudulent. He notes that Cartinhour sent several letters to him in California in the first year of their business venture, and then in 2009 filed a complaint against him with the California State Bar (Robertson was a licensed attorney). A letter to the State Bar from Cartinhour's attorney indicates Robertson convinced Cartinhour to invest $3.5 million to finance class action securities litigation and then refused to provide any accounting of what happened to the money.
At Cartinhour's request the trial court took judicial notice of filings from litigation between the parties in other jurisdictions and a decision of the California State Bar Court recommending Robertson be disbarred. The court issued a written order finding in part that "[Robertson] has been initiating legal proceedings against [Cartinhour] in various jurisdictions in a bad-faith effort to delay/prevent [Cartinhour] from collecting a $7 million judgment from a case also based on the Contract and the Partnership." The court concluded it lacked jurisdiction over Cartinhour and granted his motion to quash.
Robertson objected to the request for judicial notice on the ground that the documents were not certified copies nor produced under subpoena. But Evidence Code section 452, subdivision (d) (authorizing judicial notice of court records) contains no such requirement. In Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743, cited by Robertson, the appellate court declined to take judicial notice of a court document because it was "neither certified nor provided under subpoena" and the court had "no assurance of its authenticity." That case is distinguishable because there is no dispute about authenticity here: Robertson was a party to all the proceedings from which the documents originated, so he would know if they are false, and he tellingly does not claim that they are. The trial court was within its discretion to determine it had adequate assurances of authenticity and overrule the objection. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271 [ruling on request for judicial notice reviewed for abuse of discretion].)
II. DISCUSSION
On appeal, Robertson articulates three reasons he believes Cartinhour is subject to jurisdiction in California: Cartinhour made a general appearance in the action before moving to quash; Cartinhour has sufficient minimum contacts with California that it would not be unreasonable to require him to litigate here; and Cartinhour consented to the jurisdiction of California courts by filing a complaint with the California State Bar.
We apply a mixed standard of review to an order granting a motion to quash based on lack of personal jurisdiction: We defer to the trial court's factual findings that are supported by substantial evidence (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568), but we use our independent judgment to determine the legal significance of those facts and to decide the ultimate question of whether the defendant is subject to personal jurisdiction. (Ibid.)
A. NO GENERAL APPEARANCE BY CARTINHOUR
"A general appearance occurs when the defendant takes part in the action and 'in some manner recognizes the authority of the court to proceed.' " (In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135.) If a party seeks relief from the court on any basis other than a challenge to personal jurisdiction, he or she makes a general appearance and consents to the court's jurisdiction. (Ibid.)
Cartinhour did not respond to the complaint within 30 days of service, so Robertson requested entry of default. After default was entered, Cartinhour moved to set it aside. In so doing, Cartinhour specifically indicated that he intended to challenge the court's jurisdiction, and he titled his request a "motion to set aside default and to allow filing of motion to quash service of summons." His attorney submitted a declaration and attached the motion to quash as an exhibit, stating it would be filed upon the court ordering the default set aside.
Robertson argues that Cartinhour made a general appearance because by filing a motion to set aside default he requested relief on a basis other than a jurisdictional challenge. But at the time he moved to set aside the default, Cartinhour informed the court that the motion was part of his jurisdictional challenge—the relief he requested was an order setting aside his default to allow filing of a motion to quash service of summons. So Cartinhour's first appearance in the action remained in effect a jurisdictional challenge.
Robertson suggests that to preserve his objection to jurisdiction, Cartinhour should have moved to quash without first asking for relief from default. But that would not have been permissible: Once his default was entered Cartinhour had no right to participate in the proceedings until it was set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) Further, seeking to set aside a default for the express purpose of moving to quash service of summons is not an action that recognizes the authority of the court to proceed, as is required for a general appearance.
Robertson also points out that before moving to quash, Cartinhour asked the court to stay enforcement of the default judgment and he opposed a request that he be required to post a bond. The stay of enforcement was requested by an ex parte application, however, and "[a]n appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance" and does not waive a challenge to jurisdiction. (Code Civ. Proc., § 418.11.) And Cartinhour did not seek any affirmative relief in his opposition to the bond motion; he simply asked that the motion be denied. Nor did his opposition recognize the court's authority to proceed: It was filed after the motion to set aside default to allow filing of a motion to quash, and it reiterated that the court lacked personal jurisdiction. All of Cartinhour's actions were consistent with challenging the trial court's jurisdiction.
B. CARTINHOUR HAS INSUFFICIENT CONTACTS WITH CALIFORNIA
Since California courts "may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States" (Code Civ. Proc., § 410.10), we analyze the propriety of personal jurisdiction under constitutional principles. The United States Constitution limits the exercise of state court jurisdiction over nonresidents by way of the Fourteenth Amendment Due Process Clause. Due process permits a state to exercise jurisdiction over a nonresident only when there is some affiliation between the state and the underlying controversy. (Bristol-Meyers Squibb Co. v. Superior Court of California, San Francisco County (2017) ___ U.S. ___ , 137 S.Ct. 1773, 1779-1780 (Bristol-Meyers).) A nonresident defendant is subject to jurisdiction for any lawsuit (that is, general or all-purpose jurisdiction) if the defendant's contacts with the state are so significant that the defendant can be considered " 'at home' " there. (Daimler AG v. Bauman (2014) 571 U.S. 117, 122.) Cartinhour's contacts with California are clearly not so extensive that he is subject to general jurisdiction. He has never been to California, and there is no evidence of the "continuous or systematic contacts" with the state that are required for general jurisdiction. (See id. at p. 154.)
But even defendants who have more limited contacts with a state can be subject to jurisdiction for a particular lawsuit (specific jurisdiction), if the lawsuit arises out of those contacts. (Bristol-Meyers, supra, at p. 1780.) To be subject to specific jurisdiction, a defendant must have minimum contacts with a state, the quality and nature of which make the assertion of jurisdiction reasonable. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich).) The inquiry "focuses on 'the relationship among the defendant, the forum, and the litigation.' " (Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 775, quoting Shaffer v. Heitner (1977) 433 U.S. 186, 204.) Specific jurisdiction may be exercised only where the defendant has purposefully availed himself or herself of benefits from the state, the controversy is related to the defendant's contacts with the state, and assertion of jurisdiction comports with fair play and substantial justice. (Pavlovich, supra, at p. 269.) The necessary minimum contacts cannot be established merely by demonstrating a relationship between the defendant and the plaintiff; we look to the defendant's contacts with the forum state itself, not with those who reside there. (Walden v. Fiore (2014) ___ U.S. ___ , 134 S.Ct. 1115, 1122.) "[T]he plaintiff cannot be the only link between the defendant and the forum." (Ibid.) Taking these standards together, we see that to be subject to jurisdiction, a defendant must have purposefully established contacts with the forum state—beyond a connection to the plaintiff—and the lawsuit must arise from those contacts.
Importantly, although the defendant is the moving party on a motion to quash, it is the plaintiff who has the initial burden of presenting facts sufficient for the exercise of jurisdiction. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) Only if the plaintiff makes that initial showing does the burden shift to the defendant to demonstrate that jurisdiction would be unreasonable under the circumstances. (Ibid.) Specific evidentiary facts are essential to the minimum contacts determination, as "the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." (Kulko v. Superior Court of California (1978) 436 U.S. 84, 92, quoting Hanson v. Denckla (1958) 357 U.S. 235, 246.)
On this record, Robertson has not shown Cartinhour established minimum contacts with California sufficient for the exercise of specific jurisdiction. Robertson's declaration in opposition to the motion to quash provides no facts that allow us to evaluate whether his lawsuit arises from Cartinhour's contacts with California. The contacts he identifies are that Cartinhour sent letters to him in California and complained about him to the California State Bar, but there is no evidence that the claims in the lawsuit stem from those actions. Robertson states that Cartinhour "breached said contract," and that Cartinhour defrauded him "through (a) material misrepresentations of fact and fraudulent omissions, (b) fraudulent concealment of facts, and (c) false promises without intent to perform." Those are conclusions, not facts. Legal conclusions in a declaration unaccompanied by supporting facts are not competent evidence. (Kim v. Westmore Partners, Inc. (2011) 201 Cal.App.4th 267, 280-281.) Robertson also states—again without supporting detail —that "a substantial portion of the contract was to be performed here in California," and that "property related to the contract was located here in California." Vague allegations without underlying facts are also not competent evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 640.) None of the conclusory assertions in Robertson's declaration explain how the conduct giving rise to the complaint is connected to California. The one-page contract between the parties is in the record, but nothing in it indicates it is to be performed in California, nor does it refer to property in California—indeed, it says the partnership is a District of Columbia entity and the partners are in Washington, D.C. and Maryland.
Robertson describes effects he experienced from the alleged breach of contract and fraud: He says he "performed services" and "advanced monies," and detrimentally relied on Cartinhour's alleged misrepresentations while in California. But causing injury to a resident of the forum state is insufficient to warrant the exercise of jurisdiction over a non-resident. (Walden v. Fiore, supra, ___ U.S. ___ , 134 S.Ct. at p. 1125.) "The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." (Ibid.)
Robertson relies most on the fact that Cartinhour made a complaint to the California State Bar and sought reimbursement from a State Bar fund. He argues those actions establish Cartinhour purposefully availed himself of the benefits and protections of California law and therefore jurisdiction is reasonable. While Cartinhour did establish contact with California by submitting the complaint and seeking reimbursement from the State Bar, that is not enough for the exercise of specific jurisdiction—Robertson must also demonstrate that the claims in his lawsuit arose from that contact. " '[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.' " (Bristol-Meyers, supra, ___ U.S. ___ , 137 S.Ct. at p. 1780, quoting Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 919.) There is no evidence that Cartinhour's State Bar complaint is the basis for Robertson's claims for breach of contract and fraud. To the contrary, Robertson admits in his declaration that the Bar complaint did not occur until after the dispute arose. Robertson has not met his burden of demonstrating minimum contacts sufficient for the exercise of jurisdiction.
We acknowledge the existence of additional information in the record which offers greater detail about the relationship between the parties than what Robertson provides in his declaration. But that information does not factor into our analysis because it comes from documents of which the trial court took judicial notice (out-of-state court decisions and an opinion of the California State Bar Court). We therefore recognize the existence of those documents and the results reached in the proceedings, but we do not consider the facts stated in the documents for their truth. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145.) And even if we were to consider facts from judicially noticed documents as part of our jurisdictional analysis, that would not help Robertson, since those facts indicate that what he calls a "business venture" appears to have been merely a vehicle for converting millions of dollars from Cartinhour for his personal use. (See, e.g., Robertson v. Cartinhour (D.C. 2012) 867 F.Supp.2d 37, 55 ["[T]he depletion of [the partnership's] funds was caused by Robertson's self-authorized loans and the loss of more than $1.9 million when he bought stocks with Cartinhour's investment."]; In the Matter of Wade Anthony Robertson, State Bar Court of California, Case No. 09-O-19259-LMA, filed September 4, 2013, at pp. 16-17 ["The misrepresentations and omission of material facts made by [Robertson] reveal a well-implemented, well-thought out, and deviously orchestrated plan to defraud Cartinhour and misappropriate large sums of money, which he had induced Cartinhour to invest in the partnership."].)
C. CARTINHOUR DID NOT CONSENT TO JURISDICTION
Robertson argues that Cartinhour consented to the jurisdiction of California courts by complaining to the California State Bar and seeking recovery from the State Bar's client security fund. He cites Nobel Farms, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 659, which held that "a nonresident plaintiff who has filed suit in California against particular parties has consented to jurisdiction in California when those same parties later sue him in a related action." But Cartinhour never filed suit against Robertson in California. Robertson argues that a petition for attorney discipline in State Bar Court is equivalent to a civil action, but the comparison is inapt: The State Bar Court is a body separate from the Superior Court (see Bus. & Prof. Code, § 6086.5 [establishing a State Bar Court]), and petitions for disciplinary action against an attorney are brought by the State Bar's Office of the Chief Trial Counsel (see Rules of Procedure of the State Bar of California, rule 2101). So a disciplinary proceeding in State Bar Court is not the same as a lawsuit in Superior Court, and is not an action filed by Cartinhour regardless. Cartinhour's complaint merely notified the State Bar of Robertson's alleged misconduct; it is separate from the later proceedings initiated by the Office of the Chief Trial Counsel in State Bar Court.
Robertson asserts that Cartinhour's request for payment from the State Bar's client security fund is equivalent to a civil action because under Business and Professions Code section 6140.5, subdivision (d), when money is paid out of the fund, the State Bar may assess that amount against the attorney whose misconduct necessitated the payment and enforce the assessment as a money judgment. But the procedure described in that section permits the Bar to obtain a judgment against an attorney to reimburse it for funds it paid to a claimant. It is not a vehicle for a claimant such as Cartinhour to obtain a judgment against the attorney. Robertson has not shown that Cartinhour filed suit against him in a court of this State nor engaged in any equivalent action that can be deemed consent to the jurisdiction of California courts.
D. THE PARTIES' MOTIONS ARE DENIED
The parties filed various motions we deferred for consideration with the appeal. Cartinhour moved to dismiss the appeal, asserting that Robertson has failed to comply with a sister state judgment and therefore his appeal is barred by the disentitlement doctrine. Consistent with our finding that California courts do not have jurisdiction over Cartinhour, we refrain from examining the merits of his disentitlement argument and we therefore deny the motion to dismiss without prejudice. Cartinhour requested judicial notice of certain documents in support of the motion to dismiss; having denied the motion, we deny the accompanying request for judicial notice as irrelevant.
Cartinhour also filed a request for judicial notice of documents relating to Robertson being disbarred in June 2016. Because those documents were not before the trial court, we deny that request.
Robertson moved to strike portions of Cartinhour's brief on the grounds that it fails to support factual assertions with citations to the record and references matters outside the record. We deny the motion, but have not considered any factual assertions not adequately supported by the record. (Cal. Rules of Court, rule 8.204(e)(C).)
III. DISPOSITION
The order granting Cartinhour's motion to quash service of summons is affirmed. Cartinhour shall recover costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Premo, J.