Vosburg v. Harrison CA4/2

Filed 7/8/21 Vosburg v. Harrison CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

STEVEN VOSBURG,

Plaintiff and Appellant, E074705

v. (Super.Ct.No. CIVDS1911175)

WAYNE HARRISON, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of San Bernardino County. Wilfred J.

Schneider, Jr., Judge. Affirmed.

The Traut Firm, James R. Traut and Taylor Traut for Plaintiff and Appellant.

Macdonald & Cody, Scott L. Macdonald, Douglas M. Carasso; Carbone, Smoke,

Smith, Bent & Leonard and Julie Kimiye Koyama for Defendant and Respondent.

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 I. INTRODUCTION

Plaintiff and appellant, Steven Vosburg, and defendant and respondent, Wayne

Harrison, were involved in a motor vehicle accident on August 21, 2017, in the State of

Idaho. On April 11, 2019, plaintiff filed a civil complaint against defendant for personal

injuries sustained in that accident in the Superior Court of San Bernardino County. On

January 15, 2020, the trial court granted a motion by defendant to quash service of

summons for lack of personal jurisdiction, and plaintiff appeals from this order. On

appeal, plaintiff’s sole argument is the trial court erred because the evidence before the

trial court established the trial court’s general jurisdiction over defendant. We conclude

the trial court’s findings are supported by substantial evidence, and we affirm the order.

II. FACTS AND PROCEDURAL HISTORY

A. Pleadings

On April 11, 2019, plaintiff filed a civil complaint for personal injuries in the

Superior Court of San Bernardino County against defendant. The complaint alleged a

single cause of action for negligence, arising out of a motor vehicle accident that

occurred on August 21, 2017, in the Idaho. On August 6, 2019, plaintiff filed a proof of

service of summons indicating that on July 23, 2019, defendant had been served by

certified mail, return receipt requested, at an address outside of California.

B. Defendant’s Motion to Quash

On August 29, 2019, defendant filed a motion to quash service of summons for

lack of personal jurisdiction.

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 1. Defendant’s Declaration

In support of his motion, defendant submitted a declaration in which he confirmed

he had been involved in a motor vehicle accident in Idaho on August 21, 2017.

Defendant declared that, at the time of the accident, he owned two residences—one in

California and one in Arizona—and the vehicle he was driving at the time of the accident

was registered in Arizona. Defendant further declared he had been retired since 2012,

was not acting as an agent or employee of any California resident or corporation at the

time of the accident; did not operate any businesses in California; did not hold any

licenses or certificates issued by any California governmental entity; and did not maintain

any associations with California that requires his physical presence in the state. Since the

accident, defendant had purchased a new residence in Utah, was residing at that

residence, had no intention of returning to reside in California, and was in the process of

selling his California residence. His only visits to California since moving to Utah were

to visit family and friends.

2. Idaho Collision Report

In opposition to the motion to quash, plaintiff presented a copy of an Idaho vehicle

collision report for the 2017 accident. The report listed an address in Yucaipa,

California, as defendant’s address. However, it also noted that defendant held an Arizona

driver’s license and was driving a vehicle registered in Arizona.

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 3. Defendant’s Responses to Interrogatories1

Plaintiff also submitted excerpts from defendant’s responses to special

interrogatories. According to defendant’s interrogatory responses, he was born in

California and had a residence in California until 2019. When asked to identify his

primary residence at the time of the 2017 accident, defendant identified both his

California and Arizona residences. When asked to identify the residence where he spent

“most of his time” at the time of the accident, defendant again identified both his

California and Arizona residences. He estimated that he spent half the year (26 weeks) in

California in 2017 and 2018, but he spent only four weeks in California in 2019. While

he owned a vehicle registered in California in 2017, by the time the complaint was filed

in 2019, he no longer owned any vehicles registered in California. Defendant did not

hold a California driver’s license at any time relevant to the litigation and had never been

registered to vote in California during that time period, instead stating he had been

registered to vote in Arizona until recently registering in Utah.

Defendant’s interrogatory responses also disclosed that his mother and father had

lived in Yucaipa, California, until sometime in 2018. Defendant became the executor of

their estate when they passed, and the residence in which his parents lived was sold in

May 2019.

1 Plaintiff presented only specified excerpts of defendant’s interrogatory
responses in opposition to the motion. However, defendant submitted the entire response
for context in reply.

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 In April 2019, defendant moved to a residence in Utah. Prior to this time, he had

only gone to Utah periodically to visit his children. He listed his California residence for

sale during his move to Utah and had not slept in his California residence since moving to

Utah. Since moving to Utah, defendant had visited California on only four occasions, but

stayed in a relative’s home on each occasion. On two of those occasions, defendant was

in California for only one day while en route to and from Hawaii.

Defendant was asked to identify real property in which he held an “ownership

interest.” At the time of the 2017 accident, defendant identified six properties in

California and one in Arizona. At the time plaintiff’s complaint was filed, defendant held

an interest in four properties in California, one in Utah, and one in Arizona. At the time

defendant was served with the summons, he held an interest in three properties in

California, two in Utah, and one in Arizona.

At the time he responded to interrogatories, defendant had no future trips to

California planned.

4. Declaration of Investigator

Finally, plaintiff submitted the declaration of a private investigator. The

investigator declared that he contacted a current occupant of one of the residences in

which defendant identified as having an ownership interest and he was told that it was a

rental property, managed by a property management company, and owned by someone

living out of state. When the investigator contacted the property management company,

he was told that the company managed multiple properties for that owner and identified

the owner’s last name as that of defendant.

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C. Hearing and Ruling

The trial court held a hearing in which plaintiff submitted on the written

submissions without presenting any additional argument. In a written ruling, the trial

court found that defendant had been domiciled in Arizona both at the time of the accident

and at the time plaintiff’s complaint was filed. The trial court further found that while

defendant had “continuous, systematic, and substantial” contact with California at the

time of the accident, defendant no longer had such contact at the time he was served with

the summons and complaint. Based upon these findings, the trial court concluded that it

did not have general jurisdiction over defendant. The trial court further concluded that

since the litigation did not involve any of defendant’s contacts with California, specific

jurisdiction did not exist.

III. DISCUSSION

On appeal, plaintiff does not challenge the trial court’s conclusion with respect to

specific jurisdiction but argues the trial court erred in concluding it lacked general

jurisdiction over defendant. We disagree.

A. General Legal Principles and Standard of Review

“California’s long-arm statute authorizes California courts to exercise jurisdiction

on any basis not inconsistent with the Constitution of the United States or the

Constitution of California. [Citation.] A state court’s assertion of personal jurisdiction

over a nonresident defendant who has not been served with process within the state

comports with the requirements of the due process clause of the federal Constitution if

the defendant has such minimum contacts with the state that the assertion of jurisdiction

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does not violate ‘ “traditional notions of fair play and substantial justice.” ’ ” (Vons

Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444-445 (Vons

Companies).)

“Personal jurisdiction may be either general or specific. 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.] . . . [¶] 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, supra, 14 Cal.4th at pp. 445-

446.)

A defendant may assert the absence of personal jurisdiction by bringing a motion

to quash service of summons. (Code Civ. Proc., § 418.10.) “When a California

defendant moves to quash service for lack of personal jurisdiction, the burden is on the

plaintiff to establish jurisdiction by a preponderance of the evidence.” (Roy v. Superior

Court (2005) 127 Cal.App.4th 337, 343 (Roy); see CenterPoint Energy, Inc. v. Superior

Court (2007) 157 Cal.App.4th 1101, 1117 (CenterPoint Energy).) “ ‘This may be done

through presentation of declarations, with opposing declarations received in response. . .

.’ If the plaintiffs are able to make a showing of minimum contacts with the forum state,

‘the burden shifts to the defendant to present a compelling case demonstrating that the

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exercise of jurisdiction by our courts would be unreasonable.’ ” (CenterPoint Energy, at

p. 1118.)

“The existence of personal jurisdiction will often present a mixed question of law

and fact. [Citation.] To the extent that there are factual conflicts, the trial court resolves

those disputes and the substantial evidence standard governs our review. [Citation.] The

ultimate question whether jurisdiction is fair and reasonable under all of the

circumstances, based on the facts which are undisputed and those resolved by the court in

favor of the prevailing party, is a legal determination warranting our independent

review.” (Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 585.)

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B. The Trial Court’s Factual Findings Are Supported by Substantial Evidence

Here, the trial court made a factual finding that defendant was never domiciled2 in

California at any time relevant to plaintiff’s suit, concluding that defendant’s domicile

was in Arizona at the time of the accident and up until the time defendant moved to Utah.

On appeal, plaintiff contends this factual finding was erroneous as a matter of law. We

find no error in the record before us.

Initially, we disagree with plaintiff’s contention that we may independently review

the evidence to resolve this factual dispute. While it is true that the parties primarily

relied upon the same evidence in making their arguments to the trial court, they strongly

disagreed over the inferences to be drawn from that evidence. “ ‘Even in cases where the

evidence is undisputed or uncontradicted, if two or more different inferences can

reasonably be drawn from the evidence, this court is without power to substitute its own

inferences or deductions for those of the trier of fact.’ ” (Schwan v. Permann (2018)

28 Cal.App.5th 678, 693-694.) Thus, it is not appropriate for this court to substitute its

2 “Courts and legal writers usually distinguish ‘domicile’ and ‘residence,’ so that
‘domicile’ is the one location with which for legal purposes a person is considered to
have the most settled and permanent connection, the place where he intends to remain
and to which, whenever he is absent, he has the intention of returning, but which the law
may also assign to him constructively; whereas ‘residence’ connotes any factual place of
abode of some permanency, more than a mere temporary sojourn. ‘Domicile’ normally is
the more comprehensive term, in that it includes both the act of residence and an
intention to remain; a person may have only one domicile at any given time, but he may
have more than one physical residence separate from his domicile, and at the same time.”
(Smith v. Smith (1955) 45 Cal.2d 235, 239.) The distinction between one’s domicile and
residence is widely recognized in a variety of legal contexts under California law. (See
Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 284 (Whittell); People v.
McCleod (1997) 55 Cal.App.4th 1205, 1217.)

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independent judgment for that of the trial court in resolving these disputes, and we review

the finding for substantial evidence.

Additionally, we note that in the context of a motion to quash, plaintiff bore the

burden of proof to establish jurisdiction by a preponderance of the evidence. (Roy, supra,

127 Cal.App.4th at p. 343.) “ ‘[W]here the issue on appeal turns on a failure of proof at

trial, the question for a reviewing court becomes whether the evidence compels a finding

in favor of the appellant as a matter of law. [Citations.] Specifically, . . . whether the

appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such

character and weight as to leave no room for a judicial determination that it was

insufficient to support a finding.” ’ ” (Valero v. Board of Retirement of Tulare County

Employees’ Assn. (2012) 205 Cal.App.4th 960, 966; see Dreyer’s Grand Ice Cream, Inc.

v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Thus, on review, the trial court’s

factual finding that defendant was never domiciled in California during the time period

relevant to this litigation will not be overturned unless the evidence in the record was of

such character and weight as to leave no room for such a determination.

Here, the evidence clearly established that defendant maintained a residence in

California at the time of the 2017 accident subject of this litigation, as well as at the time

the complaint was filed. However, the evidence also showed that defendant maintained

another residence in Arizona at all relevant times, that he spent at least half the year at his

Arizona residence even while maintaining a residence in California, that he was

registered to vote in Arizona and not California, and that he held a driver’s license issued

in Arizona and not California. Further, between the time of the accident and the service

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of summons, defendant had significantly reduced his property holdings in California,3

vacated his residence in California, and listed the California residence for sale—all while

continuing to maintain ownership of his Arizona residence.

This was substantial evidence upon which the trial court could reasonably

conclude that defendant’s domicile was in Arizona until more recently moving to Utah.

At the very least, it cannot be said that the evidence was of such character and weight as

to compel a finding that defendant was domiciled in California at any time relevant to

this litigation. Where the trial court’s factual findings are supported by substantial

evidence, a reviewing court will not disturb such findings on appeal.

C. Absent Domicile, the Remaining Facts Do Not Support an Exercise of General

Jurisdiction

Plaintiff also argues that, regardless of the trial court’s factual determination that

defendant was never domiciled in California during the times relevant to this litigation,

defendant’s remaining contacts with the state are so numerous such that general

jurisdiction may be properly found. We disagree.

“There is a dearth of case law on general jurisdiction over natural persons.”

(Serafini v. Superior Court (1998) 68 Cal.App.4th 70, 79 (Serafini).) Nevertheless, the

United States Supreme Court has held that “[f]or an individual, the paradigm forum for

the exercise of general jurisdiction is the individual’s domicile.” (Goodyear Dunlop

3 According to defendant’s interrogatory responses, he held an interest in six
properties in 2017, an interest in only four properties by the time the complaint was filed
in April 2019, and an interest in only three properties by the time he was served with the
summons in July 2019.

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Tires Operations, S. A. v. Brown (2011) 564 U.S. 915, 924 (Goodyear Dunlop); see Ford

Motor Co. v. Mont. Eighth Judicial Dist. Court (2021)___U.S.___,___[141 S.Ct. 1017,

1024].) Thus, where a defendant is not domiciled in the forum state, “[t]he ‘standard for

establishing general jurisdiction is “fairly high” [citation], and requires that the

defendant’s contacts be of the sort that approximate physical presence.’ ” (Elkman v.

National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1315; see David L. v. Superior

Court (2018) 29 Cal.App.5th 359, 366 [For general jurisdiction, the defendant’s contacts

must be “ ‘so wide-ranging that they take the place of physical presence in the

forum.’ ”].) The facts must be such that the nonresident defendant can be considered

“ ‘ “essentially at home in the forum State.” ’ ” (Haylard Health, Inc. v. Kimberly-Clark

Corp. (2019) 43 Cal.App.5th 1062, 1070; Ford Motor Company, supra, 141 S.Ct. at

p. 1024.)

Here, the trial court’s factual finding that defendant was never domiciled in

California at any time relevant to this litigation strongly weighs against a finding of

general jurisdiction. Further, defendant was not served with the summons until

July 2019. By that time, defendant no longer had a vehicle registered in California, had

vacated his California residence, and had listed his California residence for sale.

Defendant reported spending only four weeks in California in 2019. Under such

circumstances, defendant cannot be fairly characterized as “essentially at home” in

California.

Plaintiff argues that defendant’s continued ownership of rental properties in

California, filing of California tax returns, service as executor to his parent’s estate, and

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continued presence of family in California all weigh in favor of finding general

jurisdiction. However, as we explain, those remaining contacts cannot be fairly

considered so wide ranging as to approximate or take the place of defendant’s physical

presence within the state.

First, merely holding an ownership interest in real property located in California

has little weight in determining whether general jurisdiction is appropriate over a

nonresident. “Ownership of property in California ‘alone would not support the State’s

jurisdiction.’ ” (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 271; see Shaffer v.

Heitner (1977) 433 U.S. 186, 208-209 [“[W]here . . . the property which now serves as

the basis for state-court jurisdiction is completely unrelated to the plaintiff’s cause of

action . . . the presence of the property alone would not support the State’s

jurisdiction.”].) While ownership of property within the state would clearly subject a

nonresident to specific jurisdiction with respect to controversies involving such property,

mere ownership of real property for a purpose other than residence is not an act that can

be characterized as akin to the physical presence of defendant in the state.

Additionally, the fact the real property at issue in this case is used to generate

income does not support the assertion of general jurisdiction. Both the United States and

the California Supreme Courts have held that a nonresident’s act of conducting business

within a state does not support an assertion of general jurisdiction. (Goodyear Dunlop,

supra, 564 U.S. at pp. 927-928 [Conducting business within a state “may bolster an

affiliation germane to specific jurisdiction. . . . But ties serving to bolster the exercise of

specific jurisdiction do not warrant a determination that, based on those ties, the forum

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has general jurisdiction over a defendant.”]; Cornelison v. Chaney (1976) 16 Cal.3d 143,

149 [defendant who engaged in business activity in California—which included periodic

trips into the state to deliver and obtain goods, an ongoing relationship with an in-state

entity, and a state license—was not sufficient to establish general jurisdiction].)

Second, the fact that defendant filed California tax returns has almost no

relevance. “While a person can have in law only one domicile [citation], he may have

. . . more than one ‘residence’ for tax purposes.” (Whittell, supra, 231 Cal.App.2d at

p. 284.) Notably, even persons who have no physical presence in California and who are

considered nonresidents can be required to file a California tax return. (Valentino v.

Franchise Tax Bd. (2001) 87 Cal.App.4th 1284, 1290; see Rev. & Tax. Code, § 17041,

subd. (b).) Thus, evidence that defendant filed a “California tax return” without any

additional indication of the type of tax return filed or the reasons necessitating these

filings has little, if any, bearing on a determination of whether defendant’s contacts with

the state approximate physical presence.

Third, the fact that defendant served or serves as the executor of his parents’ estate

has almost no relevance to determining general jurisdiction. “The Probate Code makes

specific allowance for a nonresident . . . to serve as executor of a will subject to probate

in California . . . .” (Estate of Condon (1998) 65 Cal.App.4th 1138, 1143.) In fact, the

Probate Code expressly recognizes that a resident of this state appointed as an executor

may later move and become a nonresident. (Prob. Code, § 8570.) If serving as an

executor is not the type of act that would even suggest residence within the state, such act

would clearly have even less relevance for the purpose of determining whether the

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defendant can be characterized as “physically present” or “essentially at home” in the

state.

Finally, we are uncertain why plaintiff believes the presence of family members

within the state is a fact relevant to the assertion of jurisdiction. “ ‘ “[P]ersonal

jurisdiction over any non-resident individual must be premised upon forum-related acts

personally committed by the individual.” ’ ” (Crea v. Busby (1996) 48 Cal.App.4th 509,

517.) The choice of defendant’s relatives to live in California is not an act attributable to

defendant. Thus, irrespective of the number of relatives defendant may have that choose

to reside in California, this fact cannot be the basis of an assertion of personal jurisdiction

over defendant.

Because the trial court made a factual finding that defendant was never domiciled

in California at any relevant time period and substantial evidence supports the

determination, the minimal contacts that defendant maintained at the time he was called

upon to answer plaintiff’s complaint do not support the assertion of general jurisdiction

over defendant.

D. General Jurisdiction Cannot be Premised Upon Contacts that No Longer Exist

On appeal, plaintiff relies heavily on the fact that defendant was a “long-time

California resident” and “native son” of California prior to service of summons in this

action, pointing to the fact that defendant was born in California and had spent six

decades in California before moving to Utah. However, traditional notions of fair play

and substantial justice do not support reliance on past contacts to support a claim of

general jurisdiction.

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 In Serafini, supra, 68 Cal.App.4th 70, the Court of Appeal considered the

propriety of asserting general jurisdiction over a nonresident individual based upon his

extensive past business contacts requiring physical presence in the state. (Id. at pp. 79-

80.) The court noted that there appeared to be little case law addressing this specific

issue in the context of natural persons but analogized to principles of general jurisdiction

with respect to nonresident corporations. (Ibid.) It noted that even where a nonresident

corporation at one time had substantial and continuous contacts sufficient to support

general jurisdiction, “[w]hen the corporation ceases to do business in the state, there is no

longer any general jurisdiction, i.e., jurisdiction as to causes of action independent of that

business.” (Ibid.) Based upon this reasoning, the Court of Appeal concluded that, where

a natural person may have had sufficient substantial contact in the state at one point but

ceased that activity prior to service of process in the action, general jurisdiction over that

individual no longer existed and any exercise of jurisdiction must be premised upon

specific jurisdiction related to the defendant’s actual activity within the state. (Ibid.)

We agree with the reasoning in Serafini, supra, 68 Cal.App.4th 70. The principle

behind an assertion of general jurisdiction is that a defendant’s contacts with the forum

state are so extensive that it is “consistent with traditional notions of fair play and

substantial justice to subject the defendant to the jurisdiction of the forum even when the

cause of action is unrelated to the defendant’s contacts with the forum.” (Brue v. Al

Shabaab (2020) 54 Cal.App.5th 578, 589.) Thus, where a defendant has substantial

current and ongoing contacts with the state that are so significant that the defendant can

be fairly considered physically present in the state, it does not offend any notion of fair

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play or substantial justice to expect that defendant to answer in the courts of that state.

Because the defendant’s contacts are so extensive as to approximate physical presence, it

would be no different from demanding the defendant appear in the courts of the state in

which he or she is domiciled.

However, this reasoning makes little sense when the substantial contacts upon

which a plaintiff relies are no longer in existence at the time the defendant is called upon

to answer in court. In our view, to premise an assertion of general jurisdiction based

upon those past contacts would extend the notion of general jurisdiction too far. It is not

uncommon for persons to spend significant portions of their lives in one state, only to

permanently move to another state for a variety of reasons. It would be fundamentally

unfair to assert that California can maintain general jurisdiction over such persons based

primarily on their historical connections with the state. Thus, we find plaintiff’s

arguments on this point unpersuasive.

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 IV. DISPOSITION

The order is affirmed. Respondent to recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

MILLER
Acting P. J.

SLOUGH
J.

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