Filed 8/26/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JACQUELINE B., B308815
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV00329)
RAWLS LAW GROUP, P.C., et
al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Yolanda Orozco, Judge. Affirmed.
Law Office of David Feldman and David Feldman for
Plaintiff and Appellant.
Nemecek & Cole, Michael McCarthy, Vikram Sohal, and
Mark Schaeffer for Defendants and Respondents.
******
The State of California may exert specific personal
jurisdiction over an out-of-state defendant with respect to a
particular lawsuit only if (1) the defendant has purposefully
availed itself of the benefits of California as a forum, (2) the
controversy giving rise to the lawsuit is related to or arises out of
the defendant’s contacts with California, and (3) the assertion of
personal jurisdiction would comport with fair play and
substantial justice. (Pavlovich v. Superior Court (2002) 29
Cal.4th 262, 269 (Pavlovich).) In this case, a person with a
federal tort claim arising out of injuries suffered in California
retained a Virginia-based law firm with Virginia-licensed lawyers
to represent her in negotiating a settlement with the pertinent
federal agency’s lawyers in Arizona. Can California exert specific
jurisdiction over the firm and its lawyers if the person sues them
for malpractice? We conclude that the answer is no, and do so
because (1) the law firm and its lawyers did nothing to
purposefully avail themselves of the benefits of doing business in
California, and (2) the allegedly bad advice underlying the
malpractice lawsuit was not sufficiently related to the firm’s and
its lawyers’ contacts with California. Accordingly, we affirm the
trial court’s order quashing service of summons on these
defendants and dismissing the client’s malpractice suit.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Plaintiff suffers abuse
Jacqueline B. (plaintiff) is a veteran of the United States
armed forces.
In 2015 and 2016, plaintiff sought services from the United
States Department of Veterans Affairs (VA) at the West Los
2
Angeles facility. Specifically, she participated in the Domiciliary
Residential Rehabilitation Treatment Program under the care of
a VA social worker. The social worker initiated and pursued a
sexual relationship with plaintiff while plaintiff was her patient;
VA officials later concluded that the social worker’s actions
constituted “profound patient abuse.”
Plaintiff was living in California at the time of this abuse,
as she had been, on-and-off, since 1999.
B. Plaintiff files an administrative claim
In August 2016, and while still living in California, plaintiff
filed a report with the VA complaining about the social worker.
The VA had investigated the report, and concluded that it had
merit.
On February 10, 2017, and while still living in California,
plaintiff filed a claim under the Federal Tort Claims Act with the
VA seeking $3 million in damages for the sexual and emotional
abuse inflicted by the social worker.
The VA assigned an attorney in its Office of General
Counsel located in Phoenix, Arizona to handle plaintiff’s claim.
On August 10, 2017, that attorney offered to settle plaintiff’s
possible federal tort claim for $125,000.
C. Plaintiff seeks out and retains the Rawls Law
Group to exhaust her administrative claim and possibly
pursue a lawsuit
1. Plaintiff finds the Rawls Law Group online
In the summer of 2017, plaintiff searched online for
lawyers who might assist her with her administrative claim and,
if necessary, with filing a Federal Torts Claim Act lawsuit. One
of her search queries led her to the website for the Rawls Law
Group, P.C. (the firm).
3
The firm is a Virginia-based corporation with all of its
offices located in Virginia. Its founder and lead partner is
Brewster S. Rawls (the partner), and one of its associates at the
time was Rachel P. Maryan (the associate). The partner and
associate were both licensed to practice law in Virginia, but not in
California; the partner had appeared in federal court in
California four times over his career, and the associate had
appeared in federal court in California once.
In 2017, the firm’s website stated that the firm has a
“nationwide” practice that handled Federal Tort Claims Act cases
all over the country, and listed several examples of cases that had
resolved favorably to the firm’s clients. Two of the examples
involved settlements in cases arising out of claims against
California-based VA facilities. The website listed the firm’s toll-
free number (i.e., 877-VET-4-VET) and had a “Reach Out” form
that could be filled out and submitted to the firm from the
website.
Based on what she read on its website, plaintiff contacted
the firm. Plaintiff stated that she used a “live chat” function on
the website. During a follow-up call with the associate, plaintiff
stated that her claim involved injuries she suffered in California
and that her claim was in the midst of being administratively
exhausted with an attorney in Phoenix. The evidence is disputed
as to whether the associate told plaintiff that the firm would file
a lawsuit in federal court in California if the case did not settle in
the course of administrative exhaustion: Plaintiff said this
representation was made; the associate denied it and the partner
denied having made any decision “on the venue of a future
lawsuit.”
4
On September 8, 2017, the firm sent plaintiff a letter with
several enclosed documents, including a proposed retainer
agreement, release forms to obtain her medical records from the
VA, and an email communications consent form. The letter was
sent to a P.O. box in California. In the letter, the firm said that it
“would be pleased to represent [plaintiff] in a Federal Tort Claim
against the Department of Veterans Affairs, arising out of [her]
interactions with a social worker . . . at the West Los Angeles VA
Medical Center.”
2. Plaintiff retains the firm
On September 11, 2017, plaintiff signed the agreement
retaining the firm to “represent [her] in a potential claim for
damages under the Federal Tort Claims Act,” and faxed it to the
firm the next day. The retainer agreement expressly
contemplated settlement prior to the filing of any lawsuit because
it (1) set forth two different contingency fees for the firm, one if
the case settled before filing a lawsuit (at 20 percent) and one if it
did not (at 25 percent), and (2) authorized the firm to “decline to
continue to prosecute [plaintiff’s] case” if it “later conclude[d] that
the matter does not warrant filing a lawsuit.” The agreement
also emphasized that the firm “is a Virginia-based law firm,”
specified that the agreement was “subject to” Virginia law, and
authorized the firm, at its discretion, to associate or “refer the
case” to other counsel.
D. The firm settles plaintiff’s claim while she is
away from California for several months
On the day she faxed the retainer agreement to the firm,
plaintiff left California. Both the partner and the associate were
aware of plaintiff’s departure, and given the open-ended nature of
that departure, believed that plaintiff was no longer based in
5
California and was instead living a “transient lifestyle.” On
September 19, 2017, the firm conducted a due diligence search on
plaintiff, and the search indicated that her “primary residence”
was in Houston, Texas.
Between mid-September 2017 and early November 2017,
the firm negotiated plaintiff’s pending administrative claim with
the Phoenix-based lawyer representing the VA. During this
period, plaintiff was never in California; instead, she stayed with
family and friends in Texas, Alabama, and Virginia. Also during
this period, no one from the firm traveled to California to conduct
any investigation, met anyone in California, or conferred with
any attorneys in California. The associate made one phone call
in September 2017 to one of plaintiff’s private treatment
providers in California to determine whether that provider’s
outstanding bill could be recovered as part of a possible
settlement with the VA. On November 3, 2017, the firm secured
a $200,000 settlement offer from the Phoenix-based VA lawyer.
The firm mailed the offer to plaintiff’s then-current address in
Virginia, and recommended that she accept the offer on the
ground that her noneconomic damages would be capped at
$250,000 under the California law that would apply in any future
lawsuit filed in federal court in California.
On November 8, 2017, plaintiff met with the partner and
associate at the firm’s Richmond, Virginia office to sign the
settlement agreement.
A month later, the firm mailed the settlement check to
plaintiff at the same Virginia address to which they mailed the
settlement offer.
In May 2018, plaintiff made a post to her Facebook profile
“[t]hank[ing]” the firm, the partner and the associate “who cared
6
enough about this case” and proclaiming that it was “[w]ell worth
the 3,100 mile drive to Richmond . . . .”
II. Procedural Background
On January 6, 2020, plaintiff sued the firm, the partner,
and the associate (collectively, defendants) for (1) legal
malpractice, (2) breach of contract, and (3) breach of fiduciary
duty. Specifically, plaintiff alleged that defendants gave her bad
advice to settle because California’s $250,000 cap would not have
applied to her noneconomic damages.
On March 4, 2020, defendants moved to quash service of
summons for lack of personal jurisdiction. Following briefing
that was accompanied by declarations and other evidence as well
as a hearing, the trial court issued an 11-page order granting the
motion to quash. The court cited two reasons. First, the court
ruled that defendants had not purposefully availed themselves of
the benefits of California as a forum. In so ruling, the court
found that defendants had no “actual[]” “contact” with California
beyond sending the retainer agreement to plaintiff in California
before she left the state, which the court found “insufficient to
establish . . . adequate contact with the state of California.” The
court also found that the firm’s website did not constitute
purposeful availment because it was mostly a “passive website
that [did] little more than make information available to those
who are interested in it.” Second, the court concluded that there
was insufficient proof that the alleged malpractice “is related to
or arises out of [d]efendants’ contacts with California” because
the firm’s negotiation with the VA occurred outside of California;
the partner and associate dispensed their allegedly defective
advice to plaintiff when she was “absent from the state”; and
plaintiff signed the settlement agreement in Virginia.
7
Plaintiff filed this timely appeal from the court’s order.
DISCUSSION
Plaintiff argues that the trial court erred in granting
defendants’ motion to quash based on the lack of personal
jurisdiction. In reviewing a trial court’s dismissal for lack of
personal jurisdiction, we independently review the court’s legal
rulings and its application of the law to its factual findings
(Integral Development Corp v. Weissenbach (2002) 99 Cal.App.4th
576, 585 (Integral Development); Jayone Foods, Inc. v. Aekyung
Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553), but review
those factual findings only for substantial evidence (Burdick v.
Superior Court (2015) 233 Cal.App.4th 8, 17). In assessing
whether factual findings are supported by substantial evidence,
we ask only whether there is “‘evidence that a rational trier of
fact could find to be reasonable, credible, and of solid value . . . to
support the finding’” and do so while “viewing the evidence in the
light most favorable to the [finding].” (San Diegans for Open
Government v. City of San Diego (2016) 245 Cal.App.4th 736,
740.)
I. Principles of Personal Jurisdiction
California grants to its courts the power to assert personal
jurisdiction as far as the United States Constitution allows.
(Code Civ. Proc., § 410.10; Integral Development, supra, 99
Cal.App.4th at p. 583 [California’s long-arm statute “‘manifests
an intent to exercise the broadest possible jurisdiction,’ limited
only by constitutional considerations of due process”].) The
federal Constitution upholds the exercise of personal jurisdiction
over an out-of-state defendant as long as “the defendant has
‘certain minimum contacts with [the state] such that the
maintenance of the suit does not offend ‘traditional notions of fair
8
play and substantial justice.”’” (Goodyear Dunlop Tires
Operations, S.A. v. Brown (2011) 564 U.S. 915, 923 (Goodyear),
quoting International Shoe Co. v. Washington (1945) 326 U.S.
310, 316.) “Minimum contacts exist where the defendant’s
conduct in, or in connection with, the forum state is such that the
defendant should reasonably anticipate being subject to suit in
that state.” (BBA Aviation PLC v. Superior Court (2010) 190
Cal.App.4th 421, 429.) The “minimum contacts” standard reflects
an accommodation between the out-of-state defendant’s “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 (Vons)) and the forum
state’s interest in its ‘“sovereign power to try causes in [its own]
courts”’ (Bristol-Myers Squibb Co. v. Superior Court (2017) 137
S.Ct. 1773, 1780 (Bristol-Myers)). As this underlying rationale
suggests, “[t]he primary focus of [the] personal jurisdiction
inquiry is the” “relationship” between the defendant and the
“forum [s]tate” (id. at p. 1779), and not the relationship “between
the plaintiff and the defendant” (Vons, at p. 458).
Personal jurisdiction comes in two flavors—namely, (1)
“‘general’ (sometimes called ‘all-purpose’) jurisdiction,” and (2)
“‘specific’ (sometimes called ‘case-linked’) jurisdiction.” (Bristol-
Myers, supra, 137 S.Ct. at pp. 1779-1780; Daimler AG v. Bauman
(2014) 571 U.S. 117, 122 (Daimler).)
General jurisdiction subjects an out-of-state defendant to
suit in a forum state by anyone irrespective of the subject matter
of the lawsuit. (Walden v. Fiore (2014) 571 U.S. 277, 283
(Walden).) Given its all-encompassing breadth, general
jurisdiction will be found only when the out-of-state defendant’s
9
“‘affiliations with the [s]tate are so “continuous and systematic”
as to render [the defendant] essentially at home in the forum
[s]tate.”’ (Daimler, supra, 571 U.S. at p. 119, quoting Goodyear,
supra, 564 U.S. at p. 919.)
Specific jurisdiction subjects an out-of-state defendant to
suit in a forum state, but only as to a specific suit and only where
“the suit” itself “aris[es] out of or relat[es] to the defendant’s
contacts with the forum.” (Bristol-Myers, supra, 137 S.Ct. at p.
1780, quoting Daimler, supra, 571 U.S. at p. 118.) Specific
jurisdiction thus ‘“focuses on “the relationship among the [out-of-
state] defendant, the forum, and the [current] litigation.’””
(Walden, supra, 571 U.S. at p. 284.) The existence of specific
jurisdiction turns on the facts of each case. (Kulko v. California
Superior Court (1978) 436 U.S. 84, 92.) The courts have
nevertheless articulated the standard against which to measure
those facts: Specific jurisdiction will be found over an out-of-state
defendant only when (1) “‘the [out-of-state] defendant has
purposefully availed himself or herself of forum benefits,’” (2)
‘“the “controversy [giving rise to the present lawsuit] is related to
or ‘arises out of’ [the] defendant’s contacts with the forum,”’” and
(3) “‘“the assertion of personal jurisdiction would comport with
‘fair play and substantial justice.’”’” (Pavlovich, supra, 29 Cal.4th
at p. 269, quoting Vons, supra, 14 Cal.4th at pp. 446-447.) The
plaintiff asking the forum state to exert jurisdiction over the out-
of-state defendant bears the initial burden of establishing the
first two elements by a preponderance of the evidence, and if the
plaintiff does so, the out-of-state defendant then bears the burden
of convincing the court why the exertion of personal jurisdiction
would not comport with fair play and substantial justice.
(Pavlovich, at p. 273; Vons, at p. 449; Bader v. Avon Products,
10
Inc. (2020) 55 Cal.App.5th 186, 192-193; see also Zehia v.
Superior Court (2020) 45 Cal.App.5th 543, 552 (Zehia) [plaintiff
may not discharge its initial burden with allegations alone].)
II. Analysis
Because plaintiff has not argued to the trial court or to this
court that California has general jurisdiction over defendants, we
focus solely on the propriety of exerting specific jurisdiction.
A. Purposeful availment
1. Defined
As noted above, a court will exert specific jurisdiction over
an out-of-state defendant only if the plaintiff establishes, as a
threshold matter, that the defendant “purposefully availed” itself
of some benefit of the forum state. (Pavlovich, supra, 29 Cal.4th
at p. 269.)
An out-of-state defendant purposefully avails itself of a
forum state’s benefits if the defendant (1) purposefully directs its
activities at the forum state’s residents, (2) purposefully derives a
benefit from its activities in the forum state, or (3) purposefully
invokes the privileges and protections of the forum state’s laws by
(a) purposefully engaging in “significant activities” within the
forum state or (b) purposefully creating “continuing [contractual]
obligations” between itself and the residents of the forum state.
(Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-476
(Burger King); Vons, supra, 14 Cal.4th at p. 446.) Purposeful
availment can occur from afar; the out-of-state defendant’s
physical presence in the forum state is not required. (Walden,
supra, 571 U.S. at p. 285.)
As the name and definition of purposeful availment make
plain, an out-of-state defendant’s conduct toward the forum State
or its residents is relevant to the jurisdictional analysis only if
11
that conduct is purposeful, deliberate, and intentional. (Burger
King, supra, 471 U.S. at pp. 472-473; Vons, supra, 14 Cal.4th at
p. 446; Pavlovich, supra, 29 Cal.4th at p. 269; Snowney v.
Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1064
(Snowney).) An out-of-state defendant’s contact with a forum
state that is “random, fortuitous, or attenuated” is not enough.
(Burger King, at p. 475; Walden, supra, 571 U.S. at pp. 285-286;
Sher v. Johnson (9th Cir. 1990) 911 F.2d 1357, 1362 (Sher).) This
is why the mere fact that the out-of-state defendant’s conduct has
some “effect” on a California resident is not enough, by itself, to
constitute purposeful availment (Pavlovich, supra, 29 Cal.4th at
p. 270; Edmunds v. Superior Court (1994) 24 Cal.App.4th 221,
230, 236 (Edmunds)); to count, that effect must be intended
(Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 908-909
(Goehring); Zehia, supra, 45 Cal.App.5th at p. 554).
2. Applied
The trial court correctly concluded that defendants did not
purposefully avail themselves of any benefits of California as a
forum, and we reach this conclusion for two reasons.
First, this conclusion is dictated by the definition of
purposeful availment.
Defendants did not purposefully direct any activities
toward California residents. At most, the law firm operated a
website that could be accessed by California residents, but the
website did not target California residents specifically and it was
plaintiff who first contacted defendants. In assessing whether an
out-of-state defendant’s operation of a website constitutes
purposeful availment, we examine (1) whether the website
targets California residents (Snowney, supra, 35 Cal.4th at p.
1063; cf. Yue v. Yang (2021) 62 Cal.App.5th 539, 547 [out-of-state
12
defendant sends “‘California-focused’ social media messages
‘directly’ to California residents,” knowing their residency;
purposeful availment]; Zehia, supra, 45 Cal.App.5th at pp. 556-
557 [same]; Moncrief v. Clark (2015) 238 Cal.App.4th 1000, 1006-
1007 [out-of-state resident made false representations to
California-based attorneys to induce purchase of farm equipment;
purposeful availment]), and, if it does not, (2) where the website
falls on a “sliding scale” of “interactivity” with Internet users,
with websites allowing the out-of-state defendant to conduct
business with California residents at one end of the scale and
websites that passively make information available at the other
end (Snowney, at pp. 1063-1064; Pavlovich, supra, 29 Cal.4th at
p. 274). Here, the evidence showed that the law firm did not
target California residents (and hence that any effect on those
residents was not intended): Although the website boasted that
the firm had a “nationwide” practice and set forth examples of
prior settlements from persons who had received substandard
treatment in California VA facilities, the website included
examples from all around the country and the website itself was
accessible from anywhere. On the sliding scale, the firm’s 2017
website occupied a “middle ground” because it ostensibly allowed
plaintiff to exchange information with the firm’s website
(Snowney, at pp. 1063-1064), although the fact that plaintiff
herself had to reach out to the firm directly confirms the minimal
interactivity of the website.
Defendants did not purposefully derive any benefit from
the forum state over and above the potential contingency fee
promised in the retainer agreement and its consequent “effect” on
plaintiff. But it is well settled that a discrete, shorter-term
contract between an out-of-state defendant and a forum resident
13
“does not automatically establish purposeful availment” in the
resident’s “home forum.” (Goehring, supra, 62 Cal.App.4th at p.
907; Snowney, supra, 35 Cal.4th at p. 1066; Sher, supra, 911 F.2d
at p. 1362; cf. McGee v. International Life Ins. Co. (1957) 355 U.S.
220, 223-224 [long-term insurance contract may constitute
purposeful availment].)
And defendants did not purposefully invoke the privileges
and protections of California’s laws, either by engaging in
“significant activities” within California or by creating a
“continuing [contractual] obligation” with a California resident.
Second, the conclusion that there is no purposeful
availment is also supported by the cases that have examined
when it is appropriate for courts to exert specific jurisdiction over
out-of-state law firms and lawyers who are sued for malpractice.
In assessing whether law firms and lawyers have
purposefully availed themselves of a forum state’s benefits, courts
have looked to a variety of factors. These factors include (1)
whether the malpractice plaintiff/former client lived in the forum
state at the time the firm or lawyers were retained, as well as
when the allegedly defective legal services were provided (Simons
v. Steverson (2001) 88 Cal.App.4th 693, 712-713 (Simons)); (2)
whether the firm or lawyers were physically located in the forum
state, licensed to practice law there, used those licenses to
perform the legal services at issue, or were co-counsel with
lawyers located in the state (Edmunds, supra, 24 Cal.App.4th at
pp. 234-236; Sher, supra, 911 F.2d at pp. 1362, 1366; Simons, at
p. 712; Brown v. Watson (1989) 207 Cal.App.3d 1306, 1313-1315
(Brown)); (3) whether the retainer agreement was executed in the
forum state or whether the obligation to pay for legal services
under the agreement was enforceable solely through the forum
14
state’s legal process (Sher, at p. 1363); (4) whether the legal
services alleged to be defectively provided were provided in the
forum state and, if the services involved litigation, whether the
firm or its lawyers acquired evidence in the forum state, filed suit
in the forum state, or otherwise invoked the forum state’s legal
process (Edmunds, at pp. 234-236; Sher, at pp. 1362, 1366;
Simons, at p. 712; Brown, at p. 1313-1315); and (5) whether the
legal services provided or the plaintiff’s malpractice lawsuit
relied upon application—or misapplication—of the laws of the
forum state (Simons, at p. 713).
None of these factors is dispositive; instead, courts look to
the totality of these factors in assessing whether the firm or
lawyers have purposefully availed themselves of the forum state.
In cases where a forum state resident sues an out-of-state firm or
lawyer for malpractice based on its legal services in representing
the resident in out-of-state litigation, the forum state residency of
the client, the collection of attorney’s fees from that forum
resident, and the execution of the retainer agreement in the
forum state are not enough to constitute purposeful availment.
(See Sher, supra, 911 F.2d at pp. 1362, 1366 [Florida lawyers
represent California client in Florida criminal case; no purposeful
availment]; Edmunds, supra, 24 Cal.App.4th 221, 234-236
[Hawaii lawyers represent California resident in Hawaii civil
case; no purposeful availment]; see also Mayes v. Leipziger (2d
Cir. 1982) 674 F.2d 178, 183-185 [California lawyer represents
New York resident in California litigation; no personal
jurisdiction in New York]; Kowalski v. Doherty, Wallace, Pillsbury
& Murphy (1st Cir. 1986) 787 F.2d 7, 9-11 [Massachusetts lawyer
represents New Hampshire resident in Massachusetts litigation;
no personal jurisdiction in New Hampshire].) But if additional
15
factors are present—such as the firm’s or lawyers’ investigation
and acquisition of evidence in the forum state, the execution of a
deed of trust in the client’s property in the forum state as
collateral for payment, or association with co-counsel operating in
the forum state—the firm or lawyers are deemed to have
purposefully availed themselves of the forum state’s benefits.
(Brown, supra, 207 Cal.App.3d at pp. 1313-1315 [investigation in
state and association with co-counsel; purposeful availment];
Sher, at p. 1363 [acquisition of deed of trust; purposeful
availment].) Along similar lines, a lawyer licensed in the forum
state has purposefully availed himself or herself of that state’s
benefits if the lawyer represents a forum state resident while
relying on forum state law (Simons, supra, 88 Cal.App.4th at p.
712), but not if the lawyer uses his or her law license from a
different state to represent a client who was outside the forum
state while the lawyer represented the client in litigation outside
the forum state (Crea v. Busby (1996) 48 Cal.App.4th 509, 513-
516).
The totality of the factors in this case confirms the
propriety of the trial court’s finding that defendants did not
purposefully avail themselves of California as a forum. Although
the trial court did not make a finding as to whether plaintiff had
given up her “residence” in California by departing the state for
an extended and indefinite period of time, it was undisputed that
plaintiff left the state on the same day she sent the retainer
agreement and was outside the state the entire time defendants
rendered the legal services that plaintiff complains of in her
malpractice lawsuit (that is, the negotiation of the settlement
with the VA and the advice to settle). Defendants’ offices were in
Virginia; the partner and associate were licensed in Virginia (and
16
elsewhere), but not California; and defendants did not associate
with any California-based co-counsel. The retainer agreement
was sent to plaintiff in California and she executed it the day
before she left California, but defendants did not take any
California-based collateral to secure that agreement. The legal
services defendants provided consisted of representing and
advising plaintiff while exhausting her federal tort claim through
the administrative process with federal lawyers known to be in
Arizona. (See 28 U.S.C. § 2675(a) [Federal Tort Claims Act
claims must be exhausted administratively and denied by the
federal agency before any lawsuit may be filed]; McNeil v. United
States (1993) 508 U.S. 106, 107 [so noting].) Although the
underlying tort injury occurred in California, defendants did not
need to travel to California to conduct any factual investigation
because plaintiff’s allegations had already been investigated by
the federal agency and her claim was being administered by
federal lawyers in Arizona when defendants were retained. The
sole investigatory contact defendants had with California before
settling the case was the placement of a single phone call to
plaintiff’s California-based private treatment provider to
determine whether it would be covered by any settlement with
the VA. Defendants relied in part upon a hybrid of federal law
under the Federal Tort Claims Act and California law in
assessing the likely recovery for plaintiff’s claim during
settlement negotiations, and plaintiff’s malpractice complaint
asserts that defendants were deficient in their understanding of
California law.
To be sure, some of the factors tend to point toward
purposeful availment—such as plaintiff’s possible residence in
California, the execution of the retainer agreement in California,
17
and the relevance of California law to defendant’s settlement
efforts and plaintiff’s malpractice lawsuit. But the weight of the
factors point away from purposeful availment because defendants
were Virginia-based, did not seek to avail themselves of
California’s legal process in any way, and resolved plaintiff’s
federal tort claim entirely through the federal administrative
exhaustion process that occurred wholly outside of California, all
while plaintiff was not in California and her status as a
California resident was reasonably in dispute.
Plaintiff responds by asserting that the injuries underlying
her federal tort claim occurred in California, that her case could
have ripened into a federal lawsuit had the federal agency denied
her administrative claim, and that the lawsuit would likely have
been filed in California, such that defendants should have
therefore “anticipat[ed]” that any malpractice lawsuit arising
from their representation would be brought in California.
Although it is appropriate to look to the “contemplated future
consequences” of a contract in assessing whether that contract
constitutes purposeful availment (Burger King, supra, 471 U.S.
at pp. 479, 480; Sher, supra, 911 F.2d at p. 1362), we reject
plaintiff’s chain of logic. To begin, we cannot ignore the fact that
defendants resolved the case administratively and without the
need to file any lawsuit. We are hesitant to premise the exertion
of personal jurisdiction on possible contacts with a forum that
might have arisen had the litigation turned out differently than it
actually did. And even if we focus on how the representation
might have unfurled at the time it began, it is far from clear that
(1) the case would have proceeded to a lawsuit where plaintiff
was represented by defendants, given how most of the example
cases on defendants’ website settled without litigation and how
18
defendants reserved the right to decline further representation if
settlement did not pan out and if it determined that the matter
did not warrant filing a lawsuit, and (2) the lawsuit would have
been filed in federal court in California, given that venue was
appropriate either in the state where the underlying tort
occurred (here, California) or where the plaintiff resided (here,
not California if viewed from the time plaintiff left the State
without a definite plan to return). (28 U.S.C. § 1402(b) [defining
proper venue for claims under Federal Tort Claims Act].)
B. The lawsuit does not arise out of defendants’
contacts with the forum state
Even if we assume that defendants had purposefully
availed themselves of California as a forum by agreeing to
represent plaintiff in pursuing her federal tort claim
administratively and possibly in a future lawsuit, specific
jurisdiction is only appropriate if the “specific claims at issue”—
here, malpractice and related breaches—“arise out of,” “relate to”
or “have a substantial connection with” defendants’ contacts with
California. (Bristol-Myers, supra, 137 S.Ct. at pp. 1780, 1781;
Goodyear, supra, 564 U.S. at p. 919 [requiring “‘an affiliatio[n]
between the forum and the underlying controversy’”]; Vons,
supra, 14 Cal.4th at p. 448; Snowney, supra, 35 Cal.4th at p.
1068.)1 Where, as here, the specific claims at issue are grounded
in malpractice, we look to the nature of the malpractice and
1 California had for many years employed a sliding scale
approach that relaxed the need to show a link between the cause
of action and the out-of-state defendant’s contacts with the forum
when the defendant had “more wide ranging . . . contacts” with
the forum (Vons, at p. 455), but the United States Supreme Court
rejected that approach in Bristol-Myers, supra, 137 S.Ct. at p.
1781.
19
where it occurred (Companion Property & Cas. Ins. Co. v.
Palermo (5th Cir. 2013) 723 F.3d 557, 560-561), and assess
whether it relates to the lawyers’ contacts with California.
The requisite relationship is absent here. In her complaint,
plaintiff alleges that defendants committed malpractice (and
thereby breached their retainer agreement and fiduciary duties
to her) by giving her bad advice about whether to accept the
$200,000 settlement offer. None of these activities occurred in
California: Defendants negotiated the settlement agreement
from their offices in Virginia with the federal agency lawyer in
Arizona, and all communications defendants had with plaintiff—
including the allegedly bad advice—occurred while plaintiff was
no longer in California. Thus, there is no link between
defendants’ allegedly tortious conduct and any contacts they
might have with California. Plaintiff points out that the
underlying federal tort(s) happened in California, but that is
irrelevant to whether plaintiff’s current claims for malpractice-
based liability have any ties to California. Had the settlement
process broken down, had defendants decided to continue the
representation, and had they decided to file a federal tort action
against the VA in federal district court in California, then
personal jurisdiction may have been proper in California. But
that scenario is hypothetical; defendants’ actual contacts with
California remain too attenuated to establish the requisite link
between those contacts and the malpractice-based lawsuit at
issue.
* * *
Because plaintiff did not carry her burden of establishing
either of the first two requirements of specific jurisdiction, we
have no occasion to examine the third element (that is, whether
20
California’s exertion of jurisdiction would comport with “fair play
and substantial justice”).
DISPOSITION
The order is affirmed. Defendants are entitled to their
costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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