Filed 3/21/22 Stalnaker v. Cupp CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOHN STALNAKER, JR., D078684
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00022289-PR-TR-CTL)
CAROLE L. CUPP,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Jeffrey S. Bostwick, Judge. Affirmed.
Craig J. Leff for Plaintiff and Appellant.
Finlayson Toffer Roosevelt & Lilly and Jesse S. Finlayson for
Defendant and Respondent.
I
INTRODUCTION
Trust beneficiary John Stalnaker, Jr. (John Jr.) appeals an order
granting a motion to quash service of his petition for a trust accounting and
discharge/surcharge of trustee Carole Cupp (Carole). The trial court
determined it did not have personal jurisdiction over Carole, an 83-year old
resident of Tennessee. We agree with the trial court. Therefore, we affirm
the challenged order.
II
BACKGROUND
A
In 1981, husband John Stalnaker, Sr. (John Sr.) and wife Mary
Stalnaker (Mary) executed a revocable living trust in San Diego. They
amended the living trust from time to time, most recently in 1992.
As amended, the living trust provided for the creation of two sub-trusts
upon the death of the first spouse—(1) a revocable survivor’s trust consisting
of the surviving spouse’s separate property and community property
interests, and (2) an irrevocable maximum credit trust consisting of the
deceased spouse’s separate property and community property interests.
John Sr. and Mary were designated as the initial co-trustees of the living
trust, and John Jr. (John Sr.’s son and Mary’s step-son) and Carole (Mary’s
sister) were named as successor co-trustees, effective upon the death of the
first spouse. John Jr. was a beneficiary of the maximum credit trust (in the
event John Sr. predeceased Mary), and a contingent remainder beneficiary of
the survivor’s trust and the maximum credit trust.
In 2000, John Sr. died in San Diego County.
In 2001, Mary moved to Tennessee where her sister Carole resided. In
2009, Mary died in Tennessee. She left Carole all of her property in her will.
Carole served as the executor of Mary’s estate, which was probated in
Tennessee.
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B
In March 2020, John Jr. served Carole with a demand letter requesting
an accounting of all assets held in the maximum credit trust.
A few months later, John Jr. filed a petition in San Diego Superior
Court requesting an accounting of the living trust and its sub-trusts, removal
of Carole as trustee, and a trustee surcharge for alleged misappropriation of
trust assets and breach of fiduciary duty. The petition alleged Mary (during
her lifetime) and Carole had misappropriated assets held in the maximum
credit trust without his consent as co-trustee and in violation of the trust’s
distribution terms.
Carole filed a motion to quash service of the petition for lack of
personal jurisdiction. She asserted California courts did not have general
jurisdiction over her because she was a Tennessee resident, she did not own
property in California, and she had not been to California in nearly twenty
years. She argued California courts lacked specific jurisdiction over her as
well because she did not purposefully avail herself of the state’s benefits,
John Jr.’s claims did not arise out of her alleged contacts with the forum
state, and the exercise of jurisdiction would be unreasonable. In particular,
she claimed: (1) she never agreed to act as co-trustee, (2) she never
administered the trust in California (or elsewhere), (3) any alleged
misconduct occurred in Tennessee where she served as the executor of Mary’s
estate, and (4) the exercise of jurisdiction in California would be unfair given
her Tennessee residency, her advanced age (83 years old), and the fact Mary’s
estate was probated in Tennessee.
In a declaration attached to the motion to quash, Carole averred she
was unaware she was a co-trustee of any trust until she received John Jr.’s
demand letter, and she did not knowingly exercise any powers as a co-trustee
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under any trust. Further, she averred she performed all activities related to
the probate of Mary’s estate in Tennessee.
John Jr. opposed the motion to quash and claimed the court had
specific jurisdiction over Carole. He argued she purposefully availed herself
of California’s benefits based on three contacts she allegedly had with Jack
Kaufman, a San Diego-based attorney who prepared the living trust and its
amendments. John Jr. filed a declaration from Kaufman describing his
alleged contacts with Carole.
According to John Jr. and Kaufman, the contacts were as follows:
First, on or about July 15, 2003, Carole, Mary, and Kaufman had a
conference call during which they discussed an amendment to the trustee
designations for the survivor’s trust. In the words of Kaufman, the
amendment changed the “trustee from John Stalnaker to [Mary’s] sister,”
which we will presume is a reference to Carole.
Second, on or about July 16, 2003, Carole sent Kaufman a letter asking
him for a copy of the trust amendment just discussed, so that Carole could
“perform [her] duties as co-trustee” of the survivor’s trust.
Third, on or about July 29, 2003, Carole sent Kaufman a letter stating
Mary wanted further amendments to the survivor’s trust. The letter stated
Mary wanted to designate two co-trustees (Carole and Barry Cupp, whose
relationship to the sisters is not apparent from the record) and a successor co-
trustee (Cheryl Thompson, whose relationship to the sisters is not apparent
from the record either), because “Mary prefer[red] to have two co-trustees
and one successor co-trustee.”1
1 Before the trial court, John Jr. argued that Carole purposefully availed
herself of California’s benefits, in part, because Kaufman allegedly sent
certain trust-related letters from California to Carole in Tennessee. John Jr.
does not repeat these arguments on appeal.
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John Jr. argued Carole’s contacts with Kaufman allowed her to “carry
out her co trustee [sic] duties in administering the trust in question,” and,
therefore, John Jr.’s claims arose out of her forum-related contacts. He
asserted the exercise of jurisdiction would be reasonable as well, given that
John Sr. and Mary were California residents, they executed the living trust
in California, the living trust had a California governing law provision, and
most of the witnesses and documents were in San Diego County.
Carole filed a reply in support of her motion to quash. She disputed the
authenticity of the letters filed with John Jr.’s opposition and asserted they
did not, in any event, evince a purposeful availment of California’s benefits.
Carole also argued the petition did not arise out of her alleged contacts with
Kaufman because those contacts concerned the survivor’s trust and John Jr.’s
claims were based on Carole’s alleged misappropriation of assets from the
maximum credit trust. Finally, Carole argued the exercise of jurisdiction
would be unreasonable for many of the same reasons previously discussed.
Together with the reply, Carole filed a declaration averring she did not
recall sending the letters referenced in John Jr.’s opposition and she knew
nothing about them. She averred she did not knowingly exercise any power
as trustee and, to the best of her recollection, she was not involved in Mary’s
financial affairs until she was appointed executor of her estate.
After a hearing, the trial court granted Carole’s motion to quash. It
noted there were “several issues with [the] credibility of the evidence.” It
found, on the one hand, that Carole’s statements disclaiming knowledge of
the trust were “directly contradicted by Mr. Kaufman’s declaration and the
documents attached thereto.” It noted, on the other hand, that Kaufman had
been “disciplined by the California State Bar on numerous occasions, which
call[ed] into question his credibility.” The court declined to resolve these
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credibility issues and instead found John Jr.’s evidence, assuming it was
credible, was insufficient to justify the exercise of jurisdiction over Carole. 2
In particular, the court found John Jr. failed to establish that Carole
purposefully availed herself of California’s benefits. The court reasoned that
Carole “only ask[ed] for documentation relating to the Trust” during her
contacts with Kaufman, and there was “no attorney-client relationship
between [Carole] and Mr. Kaufman.” The court found Mary and Carole were
both in Tennessee during the alleged contacts; therefore, “to the extent that
[Carole] and Mary were cotrustees or individual trustees during this time,
the principal place of administration of the Trust would have been in
Tennessee.” According to the court, Carole and Mary were located in
Tennessee when Mary died and when Carole administered Mary’s estate;
“again, the principal place of administration would have been in Tennessee.”
Further, John Jr. claimed he only recently found out about the trust;
therefore, “there [was] no way he could have been administering the trust in
California ….” Finally, the court found there was no evidence that Carole
held or administered any property in California.
For all these reasons, the court found John Jr. failed to meet his burden
of proving purposeful availment. The court quashed service of the petition
without deciding whether the lawsuit arose from Carole’s contacts with
California, or whether the exercise of jurisdiction would be reasonable.
2 In his opening brief, John Jr. repeatedly states that the trial court
“found Kaufman’s declaration to be credible.” These statements are untrue.
The trial court openly questioned Kaufman’s reliability and explicitly
declined to make any credibility findings.
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III
DISCUSSION
A
General Legal Principles
“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. (Code Civ. Proc., § 410.10.) 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 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, quoting International Shoe Co. v. Washington (1945) 326 U.S.
310, 316.)
When a court makes a minimum contacts determination, “ ‘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 (2002) 29 Cal.4th 262,
268.) Minimum contacts determinations are fact-specific and “ ‘few answers
will be written “in black and white. The greys are dominant and even among
them the shades are innumerable.” ’ ” (Ibid.)
Personal jurisdiction may either be general or specific for purposes of
the minimum contacts inquiry. (Snowney v. Harrah’s Entertainment, Inc.
(2005) 35 Cal.4th 1054, 1062.) “ ‘For an individual, the paradigm forum for
the exercise of general jurisdiction is the individual’s domicile; for a
corporation, it is an equivalent place, one in which the corporation is fairly
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regarded as at home.’ [Citation.] A court with general jurisdiction may hear
any claim against that defendant, even if all the incidents underlying the
claim occurred in a different State.” (Bristol-Meyers Squibb Co. v. Superior
Court (2017) 137 S.Ct. 1773, 1780 (Bristol-Meyers).) John Jr. does not claim
general jurisdiction. Therefore, we focus solely on whether the exercise of
specific jurisdiction over Carole would comport with due process.
“In order for a state court to exercise specific jurisdiction, ‘the suit’
must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’
[Citations.] In other words, there must be ‘an affiliation between the forum
and the underlying controversy, principally, [an] activity or an occurrence
that takes place in the forum State and is therefore subject to the State’s
regulation.’ [Citation.] For this reason, ‘specific jurisdiction is confined to
adjudication of issues deriving from, or connected with, the very controversy
that establishes jurisdiction.’ ” (Bristol-Meyers, supra, 137 S.Ct. at p. 1780.)
Courts may exercise specific jurisdiction over a nonresident defendant
who has not been served with process within the forum state—which in this
case is California—when three requirements are met. “First, the defendant
must have purposefully availed himself of the privilege of conducting
activities in this state, thereby invoking the benefits and protections of
California’s laws. Second, the claim or controversy must relate to or arise out
of the defendant’s forum-related contacts. Third, the exercise of jurisdiction
must be fair and reasonable and should not offend notions of fair play and
substantial justice.” (Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 392.)
When an out-of-state defendant moves to quash service for lack of
personal jurisdiction, the plaintiff seeking to hail the defendant into court
“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
8
defendant then bears the burden of convincing the court why the exertion of
personal jurisdiction would not comport with fair play and substantial
justice.” (Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243,
253 (Jacqueline B.).) To carry its initial burden, “[t]he plaintiff must do more
than merely allege jurisdictional facts. It must present evidence sufficient to
justify a finding that [the forum state] may properly exercise jurisdiction over
the defendant. [Citation.] The plaintiff must provide affidavits and other
authenticated documents in order to demonstrate competent evidence of
jurisdictional facts. ... Declarations cannot be mere vague assertions of
ultimate facts, but must offer specific evidentiary facts permitting a court to
form an independent conclusion on the issue of jurisdiction.” (In re
Automobile Cases I & II (2005) 135 Cal.App.4th 100, 110.)
“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 [citations], but review those factual findings only
for substantial evidence [citation].” (Jacqueline B., supra, 68 Cal.App.5th at
p. 251.)
B
John Jr. Failed to Establish Purposeful Availment
John Jr. argues that Carole purposefully availed herself of California’s
benefits due to the three alleged contacts she had with Kaufman, a San
Diego-based attorney, nearly two decades ago. According to John Jr., the
purposeful availment element was satisfied because Carole obtained “legal
advise [sic] and assistance” during her alleged contacts with Kaufman.
Alternatively, John Jr. claims Carole “secur[ed] the legal keys to assume
control of both sub trusts” during these contacts. Even if we assume the
9
disputed contacts occurred, they fall short of establishing that Carole
purposefully availed herself of California’s benefits.
With respect to John Jr.’s first argument, John Jr. failed to present the
trial court with any evidence that Carole ever secured, or attempted to
secure, legal assistance through her alleged contacts with Kaufman. Rather,
as the trial court correctly found, the alleged “correspondence and telephone
call regarding amending the Trust indicate that Mary was [Kaufman’s]
client.” (Italics added.) Indeed, all three alleged contacts concerned
amendments to the survivor’s trust—a sub-trust established by John Sr. and
Mary. Further, John Jr. elicited no other competent evidence to support the
existence of an attorney-client relationship between Kaufman and Carole.
With respect to John Jr.’s second argument, John Jr. failed to introduce
any evidence that Carole initiated the contacts at issue to obtain “the legal
keys” necessary for her to control the sub-trust underlying John Jr.’s petition.
His petition alleged misappropriation of assets from just one of the two sub-
trusts created by the living trust–the maximum credit trust. However, all
three of Carole’s alleged contacts with Kaufman concerned the other sub-
trust created by the living trust—the survivor’s trust. Thus, Carole’s alleged
contacts with Kaufman had nothing to do with the trustee designations, or
the “control” provisions, of the sub-trust that is the focus of John Jr.’s
petition.
Even if the contacts at issue had pertained to the correct sub-trust, the
trial court still would not have erred in granting the motion to quash. In the
trial court, John Jr. vaguely argued that Carole and Mary “participated in
[the] telephone conference with Kaufman … to carry out certain changes in
the trust ….” Using similarly ambiguous language, Kaufman averred in his
declaration that he had a “telephone conference with [Carole] and Mary….”
10
However, John Jr. presented no evidence that Carole—as opposed to Mary or
Kaufman himself—initiated this supposed telephone conference. Further,
John Jr. presented no evidence of the role that Carole played, if any, during
the purported telephone conference. Thus, Carole may have acted as a mere
passive recipient of a call planned, instigated, and led by Kaufman and/or
Mary. Given this possibility, we cannot infer from the mere existence of a
telephone conference that Carole aimed her conduct at California. (See
Farina v. SAVWCL III, LLC (2020) 50 Cal.App.5th 286, 296 [“The actions of
third parties … generally are irrelevant to whether defendants …
purposefully availed themselves of a forum’s benefits.”] (Farina).)
The letters allegedly sent by Carole to Kaufman did not demonstrate
purposeful availment either. In the letter dated July 16, 2003, Carole simply
asked Kaufman for documentation of a trust amendment that had already
been made. The letter dated July 29, 2003 merely conveyed a request from
Mary asking for additional amendments to the survivor’s trust. Carole had
already been named co-trustee by the time she conveyed this request, which
did not grant her any greater or additional authority than she already had.
In short, John Jr.’s evidence did not establish that Carole sent the alleged
correspondence to secure control over any of the trusts referenced herein.
Additionally, there are many other facts suggesting Carole did not
purposefully direct her activities to California. As the trial court found,
Carole resided in Tennessee and Mary moved to Tennessee shortly after
John Sr.’s death; thus, “to the extent that [Carole] and Mary were cotrustees
or individual trustees during this time, the principal place of administration
of the Trust would have been in Tennessee.” As the trial court also found,
and as both parties appear to agree, Carole served as executor of Mary’s
estate from Tennessee, and Mary’s estate was probated in Tennessee.
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Further, there is no indication in the record, and John Jr. does not argue,
that any trust property was ever held or administered in California.
Finally, John Sr. and Mary’s actions, standing alone, do not establish
purposeful availment. John Sr. and Mary lived in California, executed the
living trust in California, and included a California choice of law provision in
the trust. But, “[o]nly when a defendant purposefully directs a third party’s
activities toward the forum state can the actions of the third party be
imputed to the defendant. [Citation.] Thus, even when a third party is
involved, the focus of our inquiry remains on the defendant’s actions and
intent.” (Farina, supra, 50 Cal.App.5th at p. 296; accord Burger King Corp. v.
Rudzewicz (1985) 471 U.S. 462, 475 [the “ ‘purposeful availment’ requirement
ensures that a defendant will not be haled into a jurisdiction solely as a
result … of the ‘unilateral activity of another party or a third person’ ”].)
There is no indication in the record, and no argument made, that
Carole directed or controlled John Sr. and Mary’s actions. Thus, John Sr. and
Mary’s residence in California, their execution of the trust in California, and
their inclusion of a California choice of law provision do not establish that
nonresident Carole directed her activities to California. (See Hanson v.
Denckla (1958) 357 U.S. 235, 254 [“It is urged that because the settlor and
most of the appointees and beneficiaries were domiciled in [the forum state]
the courts of that [s]tate should be able to exercise personal jurisdiction over
the nonresident trustees. This is a nonsequitur. ... [Personal jurisdiction] is
resolved in this case by considering the acts of the trustee.”].)
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Because John Jr. failed to establish purposeful availment, we affirm
the order granting Carole’s motion to quash service of the petition.3
IV
DISPOSITION
The order quashing service of the petition is affirmed. Respondent
Carole Cupp is entitled to her appellate costs.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
3 On appeal, John Jr. argues substantial evidence did not support the
challenged order because Carole’s declaration was “obviously false [and] not
worthy of belief ….” We need not address this argument because John Jr.
has not identified any particular factual findings lacking sufficient
evidentiary support. (Doe v. Roman Catholic Archbishop of Cashel & Emly
(2009) 177 Cal.App.4th 209, 218 [appellant waived substantial evidence
challenge to order quashing service of summons by failing to discuss
challenged findings]; Shenouda v. Veterinary Medical Bd. (2018) 27
Cal.App.5th 500, 515 [appellant waived substantial evidence challenge by
failing to address trial court’s findings or explain why the evidence did not
support the findings].) Further, we need not address the argument because
John Jr.’s evidence, standing alone, was insufficient to satisfy the purposeful
availment requirement.
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