Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-09-486308
Sepulveda, J.
A California woman sued her estranged husband, an Australian resident and citizen, for personal injuries she suffered in an automobile accident that occurred in Australia when the parties were living there together. The trial court granted defendant husband’s motion to quash service of summons for lack of personal jurisdiction. (Code Civ. Proc., § 418.10, subd. (a)(1).) Plaintiff appeals and contends that defendant was domiciled in California at the time of the automobile accident and this fact, along with ongoing contacts with California, warrants the assertion of personal jurisdiction. Defendant maintains that Australia was his domicile at the time of the accident and that he has insufficient contacts with California to support personal jurisdiction. We conclude that defendant’s contacts with California are insufficient to satisfy due process requirements and affirm the order granting the motion to quash service of summons for lack of personal jurisdiction.
I. Facts and Procedural History
Plaintiff Elizabeth Sullivan and defendant James Knobeloch were married in 1992 and are the parents of two children. Both plaintiff and defendant were born in the United States. The parties met and married in California and lived here with their children until 2001. In 2001, the family moved to Melbourne, Australia for the filming of a television series. Plaintiff was a writer and executive producer in the television industry. She was the creator and executive producer of the drama series Dr. Quinn, Medicine Woman and, in 2001, was working on development of a new series to be filmed in Australia. Defendant had worked primarily as an actor on stage and in television.
In a declaration filed with the court, plaintiff states that the move to Australia in 2001 was a temporary expediency for the filming of a television series to occur “during various parts of the year” and that the parties’ “home and base of operations was always going to be in California.” Defendant’s declaration concerning the parties’ intentions when they first moved to Australia is less direct. Defendant agrees with plaintiff in stating that the family moved to Australia “in mid June 2001 for the filming of the first season” of a television series. But defendant points out that the parties placed their children in the Australian school system in August 2001 and bought a house in Australia in November 2001. Defendant also notes that the family’s California home was put up for sale in December 2001, when the parties were here for a month during the holidays. Plaintiff denies any suggestion that the parties’ conduct in 2001 showed an intention to reside in Australia permanently. Plaintiff declares that the parties decided to sell the California home “for financial reasons before we left for Australia” and that they bought an Australian home because it was cheaper than renting. Plaintiff denies any intention “to depart California permanently.”
Whatever the parties’ initial intentions in 2001, defendant maintains that the parties made a decision to stay in Australia permanently by about February 2002. Defendant states: “In approximately February 2002 I decided to make Australia my permanent home. I enjoyed living in Australia over California, and it was my belief that plaintiff and I would live in Victoria, Australia permanently, and raise our children there.” Defendant says he and plaintiff retained an attorney around February 2002 to assist them in applying for permanent residence in Australia. Plaintiff’s declaration contradicts defendant’s declaration on this point. Plaintiff says she never agreed to reside permanently in Australia, never applied for Australian residency, and never heard defendant say anything in February 2002 about wanting to become a permanent resident of Australia. Events soon transpired that kept the parties in Australia, whether by design (as defendant asserts) or by necessity (as plaintiff asserts).
It was in May 2002 that “everything changed” in the parties’ lives, as plaintiff’s declaration observes. Defendant was driving in Victoria, Australia with plaintiff as a passenger when the car went off the road and hit a tree. Plaintiff says defendant was drunk. Defendant says an animal entered the road, and he swerved the car to avoid hitting it. Whatever the cause of the accident, the results were devastating. Although defendant escaped with a broken wrist, plaintiff’s “injuries were catastrophic, ” included brain injuries and “required years of recuperation.” Plaintiff says she was helpless after the accident and “had to rely entirely” upon defendant, her husband.
In June 2002, a month following the accident, a claim for compensation of plaintiff’s injuries was filed with the Transport Accident Commission (TAC) in Victoria, Australia, which administers a government-run no-fault insurance system for motorists. Plaintiff’s signature appears on the claim form, a copy of which defendant lodged with the court, but plaintiff declares that the handwriting and signature on the form are not hers. Plaintiff states that, following the accident, defendant “took over control of everything for his own financial and personal benefit.” Defendant denies the accusation and says he did everything he could to assist plaintiff and to maintain the household.
In late June 2002, an immigration application in the names of both plaintiff and defendant was filed seeking permanent Australian residency for the parties and their children. Plaintiff says the signature on the application is not hers and she thinks defendant may have forged her signature. Defendant denies forging her signature. But defendant does not affirmatively state that the signature is, in fact, plaintiff’s. Instead, defendant says he does “not know who signed the Application for her.” In October 2003, Australia granted the parties and their children permanent residency. Defendant declares that plaintiff never denounced her permanent residency despite her current claim that she never wanted, nor applied for, residency.
The family home in California was sold in the fall of 2002. Plaintiff declares that she had no involvement in the sale of the home and does not know “where the money went.” Defendant says he “did not handle the sale” of the California house (which was held in plaintiff’s name) and does “not know who did.” Defendant does say that the proceeds from the sale were wire transferred into the parties’ joint account in Australia, and contends that plaintiff’s accusation that he was responsible for selling the house and concealed assets from the sale was fabricated to “cast him in an unfavorable light” before the court.
While in Australia, plaintiff received TAC compensation for her injuries and loss of earnings from the automobile accident. Defendant submitted a document, unrefuted by plaintiff, showing TAC compensation of $219,545. In November 2005, plaintiff also filed a lawsuit in Australia for damages arising from the accident.
In March 2007, the parties separated. The circumstances of the separation, like so much else, is hotly disputed. Defendant says his wife left him. Defendant says plaintiff took the children to California in March 2007 for a three-week trip but, after arriving here, telephoned him to say she and the children would not be returning to Australia. Plaintiff says her husband left her. Plaintiff says she came to California in March 2007 for a job interview and that defendant “expressed a willingness to follow” her and the children if she secured the job but then sued her for divorce “the moment” she and the children were gone. Plaintiff says it was also at that time that defendant “took immediate steps to become an Australian citizen.” Defendant did file for divorce in Australia. He says he initiated divorce proceedings in May 2007, and that they were ongoing at the time of his declaration in this lawsuit in June 2009.
In May 2007, the personal injury litigation between the parties settled. TAC, on behalf of itself and defendant, paid plaintiff $920,000 in exchange for a release of liability from all proceedings and demands arising out of the accident. A month after the settlement, in June 2007, defendant was granted Australian citizenship. Plaintiff remained in California after returning in March 2007.
Defendant continues to live in Australia. Defendant says his primary residence has been Australia from 2001 or 2002 to the present. Plaintiff’s counsel concedes on appeal that defendant is now domiciled in Australia and “primarily” has “his life in Australia.” But plaintiff maintains that defendant has had, and continues to have, regular contact with California. Plaintiff declares that the family came to California and stayed for several weeks at a time at Christmas and in the spring from 2001 through 2004, and that defendant auditioned for television roles in California in 2005, 2006, and 2008. Plaintiff also declares that defendant has a California theatrical agent, received $11,455 in acting revenue from California in 2004, and has a pension credit of roughly $35,000 with the California motion picture industry.
Defendant admits visiting California for several weeks at a time during the period from 2001 through 2008 but declares that he always maintained his permanent residence in Australia. Defendant says that the majority of his trips to the United States were to visit family and friends but that he also sometimes auditioned for acting roles in California. Defendant did not receive any income for the auditions and was never hired. Defendant declares that he no longer auditions for acting roles in the United States and that acting is now “a side job.” Defendant says he has not had a California theatrical agent since about 2003, when he switched to an agent based in Australia. Defendant’s primary occupation is as a carpenter. Defendant says the 2004 acting income appears to be for the re-airing of a commercial he made in 2000.
In March 2009, plaintiff filed this lawsuit in California for personal injuries sustained in the automobile accident in Australia that occurred in May 2002, almost seven years earlier, upon the contention that the statute of limitations was tolled for various reasons. Plaintiff’s counsel, in a declaration filed with the court, acknowledged that plaintiff settled an Australian lawsuit arising out of the same accident but said he has concerns “about the circumstances surrounding the decision to proceed in Australia, the manner in which the lawsuit was conducted and its resolution.” One of those concerns may provide the best explanation for plaintiff’s decision to file this California lawsuit now. Among his concerns with the prior litigation, counsel noted: “there is a commercial automobile policy issued in California to the Sullivan Company, my client’s production company, with $1 million limits which listed [defendant] Mr. Knobeloch as an insured and which I believe covers the claims in this suit. Somehow, this never came up in the Australian proceedings.”
The record does not disclose the manner of service of the complaint and summons but apparently it was not personal service because defendant is in Australia. In June 2009, defendant specially appeared and filed a motion to quash service of summons for lack of personal jurisdiction or, alternatively, to dismiss for forum non conveniens. (Code Civ. Proc., § 418.10, subd. (a)(1) & (2).) The parties submitted declarations supporting and opposing the motion, summarized in the statement of facts above, and the court heard the motion in July 2009. In September 2009, the court granted the motion to quash “on the basis that no specific jurisdiction exists over [defendant], and that [defendant] does not have substantial, continuous and systematic contacts in California to justify the exercise of general jurisdiction.” Plaintiff timely appealed.
II. Discussion
We conclude, in the discussion that follows, that the trial court properly granted the motion to quash service of summons for lack of personal jurisdiction.
A. General Principles
A court must have personal jurisdiction over an individual sued as a defendant in a lawsuit in order to adjudicate personal rights and obligations. (Kulko v. Superior Court (1978) 436 U.S. 84, 94.) California courts are statutorily authorized to exercise personal jurisdiction on any basis consistent with the Constitutions of California and the United States. (Code Civ. Proc., § 410.10.) A state court’s assertion of personal jurisdiction, to be consistent with constitutional due process principles, must “not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe Co. v. State of Washington (1945) 326 U.S. 310, 316 (International Shoe).) “[E]ach individual has a liberty interest in not being subject to the judgments of a forum with which he or she has established no meaningful minimum ‘contacts, ties or relations.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445, italics omitted.)
Historically, personal jurisdiction over defendants was grounded on the court’s “de facto power over the defendant’s person” (International Shoe, supra, 326 U.S. at p. 316), and an individual’s physical presence in the forum state when served with a complaint and summons remains a valid basis for asserting personal jurisdiction (Burnham v. Superior Court (1990) 495 U.S. 604, 628). Jurisdiction over those domiciled in California when suit is commenced, whether or not present for service of process, is also consistent with due process and a valid basis for personal jurisdiction. (Milliken v. Meyer (1940) 311 U.S. 457, 462-464; Allen v. Superior Court (1953) 41 Cal.2d 306, 312-313.) A resident has an established relationship with the state and concomitant responsibilities arising from his or her state citizenship. (Milliken, supra, at pp. 463-464.) Personal jurisdiction may thus be asserted over a resident even if he or she is temporarily absent from the state because the relationship between state and citizen “is not dissolved by mere absence from the state.” (Id. at p. 464.) An “incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.” (Ibid.)
Another valid basis for asserting personal jurisdiction-whether for historical reasons or because it shows a purposeful connection with the forum state-is the defendant’s general appearance in the action. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 3:158, p. 3-46.1; see Titus v. Superior Court (1972) 23 Cal.App.3d 792, 800 [appearance in an action establishes a relationship with the state].) A nonresident may also waive the personal jurisdiction requirement by consenting to suit, as in contractual forum selection clauses. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472, fn. 14; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 3:170, p. 3-47.) But the assertion of personal jurisdiction over a nonresident generally requires a weighing of various factors to determine if the nonresident has sufficient contacts with the state to make the assertion of personal jurisdiction consistent with due process. A nonresident must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe, supra, 326 U.S. at p. 316.)
The California Supreme Court has explained that, “[u]nder 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.’ [Citations.] ‘[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.’ [Citations.] ‘[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.” ’ [Citations.] [¶] In making this determination, courts have identified two ways to establish personal jurisdiction. ‘Personal jurisdiction may be either general or specific.’ ” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268-269.)
“A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial... continuous and systematic.’ [Citations.] In such a case, ‘it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum.’ [Citations.] Such a defendant’s contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at pp. 445-446.) General, or unlimited, jurisdiction based on a defendant’s continuous and systematic contacts has been asserted against corporations operating offices in California. (E.g., Hesse v. Best Western Internat., Inc. (1995) 32 Cal.App.4th 404, 410; Koninklijke L. M. v. Superior Court (1951) 107 Cal.App.2d 495, 500-501.) “There is a dearth of case law on general jurisdiction over natural persons” (Serafini v. Superior Court (1998) 68 Cal.App.4th 70, 79), and the United States Supreme Court has declined to say whether general jurisdiction over matters unrelated to activity in the forum based on a defendant’s continuous and systematic contacts with the forum is applicable to natural persons. (Burnham v. Superior Court, supra, 495 U.S. at p. 610, fn. 1.) As a practical matter, a corporation is far more likely to have substantial, continuous, and systematic contacts with the state than is a nonresident natural person.
“If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 446, italics omitted.) “This principle is most frequently encountered in cases involving torts committed by nonresidents while temporarily in the state, ” such as “[a] nonresident motorist who causes injury while driving on California highways.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 3:265, 3.265.1, p. 3-71.) “If the nonresident committed the liability-producing acts while physically present in California, the exercise of personal jurisdiction by state courts will almost always be held ‘reasonable.’ His or her presence here while committing such acts will almost always constitute a sufficient ‘contact’ to satisfy due process in lawsuits arising from those acts.” (Id. at ¶ 3:264.)
A defendant may challenge personal jurisdiction by filing a motion to quash service of process. (Code Civ. Proc., § 418.10, subd. (a)(1).) “[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 449.) “[W]here there is conflict between the declarations of the parties, the explicit and implicit resolution thereof by the trial court may not be reevaluated on appellate review.” (Mihlon, supra, at p. 710.) Resolution of conflicting evidence is for the trial court, and its factual determinations will not be disturbed on appeal if supported by substantial evidence. (Vons Companies Inc., supra, at p. 449.) “When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record.” (Ibid.)
B. Substantial evidence supports the trial court’s ruling
Defendant is an Australian resident and citizen. As noted above, a nonresident of the forum state must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe, supra, 326 U.S. at p. 316.) “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.’ ” (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 268.) Where, as here, the cause of action arises out of events occurring outside California that are unrelated to defendant’s contacts with California, the state may not assert jurisdiction unless the defendant’s contacts in the forum state are substantial, continuous, and systematic. (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 445.)
Defendant’s current contacts with California clearly fail to meet this standard. Defendant has lived and worked in Australia since 2001 and declares that he has considered Australia to be his permanent home since February 2002. His visits to California, for social reasons and unsuccessful acting auditions, were few and generated no income. The only California-related income defendant received while living in Australia, as shown on this record, was relatively minor (less than $12,000) and apparently was residual income from work performed in 2000, before defendant moved to Australia. Even that income is not recent; it was received six years ago, in 2004. As plaintiff concedes, at the time this lawsuit was filed, defendant “was no longer domiciled in California and, primarily, he had his life in Australia.”
Arguably, it may not be defendant’s current contacts with California that are relevant to assessing the jurisdictional issue but his contacts years earlier, at the time the cause of action arose. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 3:205.1, p. 3-55; contra, Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 227 [in marital dissolution proceeding, court looks at current not past contacts with state]; see Rest.2d Conf. of Laws, § 35, com. d, p. 144 [state may exercise jurisdiction over nonresident who previously did business in the state but only “as to causes of action arising from the business done in the state”].) The evidence concerning defendant’s connection with California at the time of the accident is in stark conflict. The trial court resolved those factual conflicts in defendant’s favor and found insufficient contacts for personal jurisdiction. The trial court’s resolution of factual conflicts “may not be reevaluated on appellate review.” (Mihlon, supra, at p. 710.) “It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment” or order. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631, italics in original.) The same rule applies even where, as here, facts were presented in declarations rather than by live testimony. (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 1000.)
The evidence supports the trial court’s determination that defendant’s contacts with California were not substantial, continuous, and systematic in May 2002, when the accident occurred. At that time, defendant had been living and working in Australia for almost a year and had purchased a house there in November 2001 with his wife, plaintiff. The former family home, a California property held in plaintiff’s name, was listed for sale. The parties’ children were enrolled in school in Australia and the parties received their mail in Australia. Although defendant was represented by a California theatrical agent at the time of the accident, he was never hired for work in California. Several months before the accident, around February 2002, defendant decided to stay in Australia permanently and retained an attorney to assist him in applying for permanent residency, which he later obtained. These facts do not establish substantial, continuous, and systematic contacts with California.
Plaintiff’s counsel makes no effort to argue that defendant’s contacts with California, whether at the time of the accident or now, meet the minimum contacts test of being substantial, continuous, and systematic. Instead, counsel argues that the minimum contacts test is inapplicable to nonresidents who are former residents, and that another test applies. Counsel is mistaken. His mistake comes from relying upon isolated statements in a case that applied a now-superseded statute: Owens v. Superior Court (1959) 52 Cal.2d 822 (Owens).
In Owens, plaintiff commenced an action against defendant “to recover damages for injuries suffered from being bitten by defendant’s dog. The cause of action arose in California when defendant was a resident here, but before the action was commenced, defendant became a permanent resident of Arizona.” (Owens, supra, 52 Cal.2d at p. 826.) California’s jurisdictional statute at the time authorized personal jurisdiction over a defendant on several grounds, and authorized jurisdiction if the defendant was a resident of the state at the time of the commencement of the action or at the time the cause of action arose. (Former Code Civ. Proc., § 417, subds. (a) & (b).) The dog-owner defendant had been a California resident at the time the cause of action arose and thus was properly served under the statute. (Owens, supra, at p. 827.)
Defendant challenged the constitutionality of the statute by contending that “since amenability to suit is a responsibility growing out of domicile in the state, it ceases when such domicile ceases.” (Owens, supra, 52 Cal.2d at p. 829.) Our Supreme Court agreed “that the mere fact of past domicile in the state would not subject [defendant] to its jurisdiction indefinitely, for a past domicile having no relationship to the litigation at hand would not afford a reasonable basis for an assertion of jurisdiction.” (Ibid.) But, the court noted, the statute “requires more than past domicile in the state. There must have been domicile here at the time the cause of action arose. Since jurisdiction so based rests neither on an existing relationship nor on the right of the plaintiff to rely on an existing relationship at the time he commences his action, it may be debatable whether such jurisdiction can constitutionally be assumed in the absence of some other relevant contacts with the state. If, for example, neither the plaintiff nor the defendant were presently domiciled here and the cause of action arose out of the defendant’s activities elsewhere, the fact standing alone that the defendant was domiciled here at the time the cause of action arose might be too tenuous a basis for asserting jurisdiction over him.” (Ibid.) The court concluded that the statute was validly applied to the case before it because defendant did have sufficient contacts with the state, under the due process standard of International Shoe. (Owens at p. 832.) The court held: “When, as in this case, the cause of action arose here out of an activity carried on here at a time when defendant was domiciled here, ‘the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure’ ([International Shoe, supra, 326 U.S. at p. 319]) fully justifies subjecting defendant to the jurisdiction of our courts.” (Id. at p. 832.)
Plaintiff misinterprets Owens. Plaintiff argues that Owens held that former residents are subjected to a type of domiciliary test rather than a minimum contacts test. Not so. The court applied the International Shoe minimum contacts test and discussed defendant’s status as a former domiciliary because the statute at the time asserted jurisdiction over those who were state residents either at the time of the commencement of the action or at the time the cause of action arose. (Owens, supra, 52 Cal.2dat pp. 827-832; former Code Civ. Proc., § 417, subds. (a) & (b); see In re Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1169 [Owens “is a minimum contacts case”].) But defendant’s contacts with the state, not his status as a former resident, were determinative in the court’s assertion of jurisdiction. Former residency is relevant to the minimum contacts test as a form of contact but is not a sufficient basis for asserting personal jurisdiction. In Owens, the court did not uphold the assertion of jurisdiction because defendant was a former resident but because defendant had contact with the state-specifically, defendant had a dog in California that bit a California resident. (Owens at pp. 829-830.) The court recognized that “the fact standing alone that the defendant was domiciled here at the time the cause of action arose might be too tenuous a basis for asserting jurisdiction over him” but “[i]n the present case the cause of action arose out of defendant’s activities in this state, namely, his ownership and possession of the offending dog.” (Ibid.)
Plaintiff reads Owens differently. Plaintiff maintains that Owens established an alternative test to the minimum contacts test for former residents. According to plaintiff: “a court ought to consider the defendant’s domicile when the cause of action arose and then look at whether there is an absence of other relevant contact, such as plaintiff not being domiciled in California at the time suit was filed.” Plaintiff argues that defendant Knobeloch was domiciled in California when the cause of action arose and that there is other relevant contact because plaintiff Sullivan is herself domiciled in California now, and defendant has some other current contacts, even though no substantial contacts. The argument is untenable, both legally and factually.
Plaintiff misconstrues the relevant legal principles. Defendant’s domicile when the cause of action arose was a focus of the court’s consideration in Owens, supra, 52 Cal.2d 822 because, at that time, the terms of the jurisdictional statute employed that consideration. (Former Code Civ. Proc., § 417, subd. (b).) The jurisdictional statute has long since been amended to provide 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.” (Code Civ. Proc., § 410.10.) Assertion of jurisdiction over nonresidents under this statute generally requires a weighing of various factors to determine if the nonresident has sufficient contacts with the state to make the assertion of personal jurisdiction consistent with due process. A nonresident must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe, supra, 326 U.S. at p. 316.) And it is the defendant’s purposeful availment of the privilege of conducting activities within the forum state that is essential when asserting jurisdiction over a nonresident. (Kulko v. Superior Court, supra, 436 U.S. at p. 94.) “ ‘The unilateral activity of those who claim some relationship with a nonresident defendant, ’ ” like plaintiff’s decision to return to California and file a lawsuit here, “ ‘cannot satisfy the requirement of contact with the state.’ ” (Ibid.)
Plaintiff is correct in stating that “[d]omicile has always been a recognized basis for personal jurisdiction.” But assertion of personal jurisdiction based on domicile requires that the defendant be domiciled in the forum state at the time the cause of action is commenced. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 3:150, p. 3-46.) As we explained above, personal jurisdiction may be asserted against a current domiciliary because he or she has an established relationship with the state. (Milliken v. Meyer, supra, 311 U.S. at pp. 462-464; Allen v. Superior Court, supra, 41 Cal.2d at pp. 312-313.) The same cannot be said of a former domiciliary, and thus his or her contacts with the state must be evaluated to determine whether the quality and nature of defendant’s activity make it reasonable and fair to require him or her to conduct a defense here. (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 268.) In making that evaluation, a defendant’s former residency in the state is a relevant consideration-as a type of contact-but it is not determinative.
Plaintiff’s reliance on defendant’s status as a domiciliary at the time the cause of action arose is also factually defective. Substantial evidence supports the contrary view: that defendant left California and established a new domicile in Australia no later than February 2002, several months before the automobile accident in May 2002 that gave rise to the cause of action. “The acquisition of a new domicile is generally understood to require an actual change of residence accompanied by the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode.” (DeYoung v. DeYoung (1946) 27 Cal.2d 521, 524.) As discussed above, plaintiff moved to Australia in June 2001, bought a house there in November 2001, and, by about February 2002, had decided to make Australia his permanent home and retained an attorney to begin immigration proceedings to become a permanent resident. Substantial evidence supports defendant’s claim that he was not a California domiciliary at the time the cause of action arose.
The trial court properly granted the motion to quash service of summons for lack of personal jurisdiction. Defendant’s contacts with California are insufficient to satisfy due process requirements.
III. Disposition
The order is affirmed.
We concur: Ruvolo, P. J., Rivera, J.