Birenbaum v. Burrell CA2/2

Filed 6/28/22 Birenbaum v. Burrell CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

EVAN BIRENBAUM, B309894

Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV39029)

DANIEL BURRELL et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Steven J. Kleifield, Judge. Affirmed.

Nelson & Fraenkel, Gretchen M. Nelson, Gabriel S.
Barenfeld, Gabriel Beugelmans; Radcliff Mayes and Jules G.
Radcliff, Jr., for Plaintiff and Appellant.

Keller/Anderle, Jennifer Keller and Anand Sambhwani for
Defendants and Respondents.
______________________________
 Plaintiff and appellant Evan Birenbaum (Birenbaum)
appeals from a judgment entered after the trial court granted the
motion of defendants and respondents Daniel Burrell (Burrell)
and Burrell Diversified Investments, LLC (BDI) to quash service
of summons for lack of personal jurisdiction. Because there is
insufficient evidence that Burrell and BDI purposefully availed
themselves of the privileges of conducting activities in California,
we affirm.
BACKGROUND
I. Facts1
A. The parties
Birenbaum is a California resident, who has lived in
Los Angeles continuously since 2006. He has “expertise in
developing cross-infrastructure analytics and technology for big
data application; . . . an understanding of blockchain technology;
and . . . extensive experience working with power utilities and
energy suppliers.”
At all relevant times, Burrell has been a resident of either
Colorado or New Mexico. Burrell is the sole member and
manager of BDI, a Delaware limited liability company with its
principal place of business in Aspen, Colorado, and, previously, in
Santa Fe, New Mexico. Neither Burrell nor BDI regularly
conducts business in California.

1 The facts summarized in this section are taken from
allegations in the first amended complaint and the evidence,
including declarations of Birenbaum and Burrell, submitted in
support of and in opposition to Burrell and BDI’s motion to quash
service of summons.

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 B. Burrell meets Birenbaum in New Mexico
In 2017, Burrell and Kevin Washington (Washington)
began exploring plans to build and operate a bitcoin mining
facility (the project). They began buying bitcoin mining
equipment from Joby Weeks (Weeks). In late October 2017,
Weeks flew Birenbaum to New Mexico for a meeting with Burrell
to discuss the project. At that meeting, Birenbaum “provided
critical input and information” from which “the specifics of a plan
were formed to build a data center.”
C. Birenbaum starts working on the project
By early November 2017, Birenbaum had started working
on the project, with the promise of a written contract to come
affording him a base salary, shares in the operating entity, and a
percentage of the revenue from the mining equipment.
The location for the bitcoin mining facility was initially
undetermined. With Birenbaum’s guidance, the decision was
made to locate it in Montana. Negotiations ensued to purchase
an abandoned electrical substation in Butte, Montana, which was
eventually acquired in early January 2018.
During November and December 2017, Birenbaum “spent
countless hours . . . to engineer the bitcoin plant.” This included
“the negotiation of power contracts to run the plant, the complete
design and buildout of the physical infrastructure for the servers,
[and] the design and development of the internal portion of the
plant so as to allow the operation to run efficiently.” During this
period, Birenbaum “worked primarily in Los Angeles with
occasional trips to Burrell’s private residence in Colorado for
meetings and trips to Montana to examine the plant facility.”
Birenbaum also travelled to countries including Malaysia,
Australia, and the Republic of Georgia to conduct research.

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 D. The employment agreement
On December 5, 2017, Birenbaum and Washington met in
Los Angeles to discuss the project. During another meeting in
Los Angeles on December 10, 2017, Burrell, Washington, and
Birenbaum “negotiated the specific terms of [Birenbaum’s]
employment and compensation . . . .” Birenbaum “was offered a
base salary, option shares in the data center’s operating entity,
and a portion of the revenues generated from, and investment in,
Burrell’s and Washington’s mining equipment.” Birenbaum was
also “to receive a ‘signing bonus’ as compensation for the
extensive work [he] had already rendered in service of the
project.”
Following the December 10, 2017, meeting, Birenbaum
exchanged e-mails with Burrell and Scott Mosebach regarding
drafts of an employment agreement. These negotiations
culminated on December 31, 2017, when Burrell presented
Birenbaum with a written employment agreement signed by
Burrell as the chief executive officer of BitPower LLC
(BitPower).2
The December 31, 2017, employment agreement offered
Birenbaum the position of chief operating officer, a base annual
salary, “Membership Units[,]” a signing bonus “paid upon the
successful installation of the first order[,]”and paid time off “[i]n
addition to federal and Montana state holidays[.]” It specified the
“[l]ocation” (bolding and underling omitted) as “Butte, Montana”

2 BitPower was a Delaware limited liability company formed
by Burrell and Washington to own and operate the project.
BitPower was later renamed CryptoWatt Mining, LLC
(CryptoWatt).

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and “Aspen, Colorado.” As for governing law, it stated: “The
terms of this offer letter and the resolution of any disputes will be
governed by the laws of the State of Montana, without giving
effect to conflict of laws principles. Any action relating to this
offer letter must be brought in the federal or state courts having
jurisdiction and venue in or for the courts located in Missoula
County, State of Montana, and the parties irrevocably consent to
the jurisdiction of such courts.” It also contained an arbitration
clause providing that Birenbaum and BitPower “shall submit to
mandatory and exclusive binding arbitration of any controversy
or claim arising out of, or relating to, this agreement or any
breach of this letter” to be “held in the State of Montana,
Missoula County[.]”3
Because “Burrell made clear that the [December 31, 2017,
employment agreement] was a ‘take it or leave it[,]’” and
Birenbaum had already spent hundreds of hours working on the
project without payment, Birenbaum “was left with no
alternative but to sign” the employment agreement even though
it contained less lucrative terms than had been previously
promised.
E. Birenbaum is terminated from the project
By February 2018, Birenbaum had succeeded in getting the
bitcoin mining facility on the cusp of being operational.
Nevertheless, on February 23, 2018, Burrell suddenly removed
Birenbaum from the facility. Birenbaum continued to work on
the project’s Web site, branding, and business development from
Los Angeles.

3 Earlier drafts stated that the location was “Los Angeles,
California” and included a Los Angeles, California, forum
selection clause.

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 On April 3, 2018, Birenbaum received a proposed rescission
and mutual release. Upon receiving the proposed rescission,
Birenbaum ceased all work on the project. He did not sign the
proposed rescission. The unsigned proposed rescission stated
that it was made between CryptoWatt and Birenbaum and had a
line for Burrell to sign as CryptoWatt’s manager. The unsigned
proposed rescission included a waiver of Civil Code section 1542.
II. The Lawsuit
In October 2019, Birenbaum brought this action against
various defendants, including Burrell and BDI.4 As to Burrell
and BDI, the first amended complaint asserted causes of action
for breach of contract, breach of the implied covenant of good
faith and fair dealing, fraud, negligent misrepresentation, and
recovery of unpaid wages (Lab. Code, § 201). Burrell was served
with process in Aspen, Colorado. BDI was served with process in
Dover, Delaware.
III. Burrell and BDI’s Motion to Quash Service of Summons
On March 2, 2020, Burrell and BDI filed a motion to quash
service of summons for lack of personal jurisdiction.5 Burrell and
BDI argued that the project was located in Montana; Burrell and
BDI’s project-related activities were conducted in New Mexico,
Colorado, and Montana; and the employment agreement required
disputes related to Birenbaum’s work on the project to be brought
in Montana and be governed by Montana law.

4 The other defendants are not parties to this appeal.

5 The first amended complaint was filed while the motion to
quash was pending on August 3, 2020. The parties stipulated
that Burrell and BDI’s motion to quash would be directed at the
first amended complaint.

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 In support, Burrell submitted a declaration in which he
averred that he oversaw activities related to the project from
Aspen, Colorado, and during site visits to Butte, Montana. Based
on the employment agreement and because the bitcoin mining
facility was located in Montana, he “anticipated that any legal
proceedings initiated by Birenbaum related to the [p]roject or the
[December 31, 2017, employment a]greement would occur in
Montana” and not in California.
IV. Birenbaum’s Opposition
In his opposition to the motion to quash, Birenbaum argued
that the fraudulent conduct that he alleged against Burrell and
BDI “stem[med] from an in-person meeting at Washington’s
house in Los Angeles, where Burrell and Washington induced
[Birenbaum] to accept and continue employment on the project,
by promising a bonus, equity and revenue sharing, which they
never intended to pay.” (Italics omitted.)
In his declaration submitted in support of his opposition,
Birenbaum testified that he worked more than half of his total
working days on the project from Los Angeles and resided there
throughout the duration of his employment. He paid income tax
in California and deposited his paychecks into his California
checking account.
V. The Trial Court’s Ruling
Following hearings in August and September 2020, the
trial court granted Burrell and BDI’s motion to quash on the
ground that there was no constitutionally sufficient basis for
California to exercise personal jurisdiction over those defendants.
The trial court noted that, in the December 31, 2017,
employment agreement, the location of the project was stated to
be Butte, Montana, and Aspen, Colorado, which “was consistent

7
with the undisputed fact that Montana was selected as the
site . . . .” The court found that the employment agreement’s
terms—that the contract and the resolution of any disputes
would be governed by Montana law, that actions would need to be
brought in any court having jurisdiction and venue in Missoula
County, Montana, that the parties irrevocably consented to the
jurisdiction of such courts, and that any such case would be
submitted to arbitration in Missoula County, Montana—were
“strong evidence that [Burrell and BDI] had no reasonable
expectation that any action arising out of the parties’ relationship
would be pursued in California” and “[i]n fact, their expectations
were totally to the contrary.” The court observed that “[w]hile
[Birenbaum] may have been reluctant to sign the [December 31,
2017, employment agreement], he did so nevertheless” and
“ma[de] no argument that the contract should be rescinded or
modified.”
The trial court found that “[w]hile [Birenbaum] had strong
connections to California, [Burrell and BDI] in their business
activities as they relate to this case did not.” The court
explained: “The most that can be said in favor of personal
jurisdiction in California is that some negotiations occurred here,
and that [Birenbaum] could work remotely in California. If
corporations could be subject to the jurisdiction of courts in states
where employees are allowed to work remotely, some could be
subject to personal jurisdiction in all fifty states. Local
negotiations and remote work on [Birenbaum’s] part would not
reasonably cause [Burrell and BDI] to believe that they were
subjecting themselves to the jurisdiction of California courts. [¶]
While the local negotiations contributed to the formation of the
contract that gave rise to the employment relationship, the actual

8
contract called for business to be conducted in Montana. That is,
in fact, where the company’s business was done. Thus, the
‘activity’ or ‘occurrence’ took place outside of California.”
VI. Appeal
Following the notice of entry of judgment quashing service
of summons, Birenbaum filed a timely notice of appeal.
DISCUSSION
I. Relevant Law
California courts “may exercise jurisdiction on any basis
not inconsistent with the” federal or state Constitution. (Code
Civ. Proc., § 410.10.) The federal Constitution permits a state to
exercise personal jurisdiction over an out-of-state defendant “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.”’ [Citations.]” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434,
444–445.) “‘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.’ [Citation.]” (Jacqueline B. v. Rawls Law Group, P.C.
(2021) 68 Cal.App.5th 243, 252 (Jacqueline B.).)
Personal jurisdiction may be either general (also known as
all-purpose)6 or specific (also known as case-linked). (Ford Motor

6 “General jurisdiction subjects an out-of-state defendant to
suit in a forum state by anyone irrespective of the subject matter
of the lawsuit. [Citation.]” (Jacqueline B., supra, 68 Cal.App.5th
at p. 252.) Because Birenbaum only argues that Burrell and BDI
are subject to specific jurisdiction, we do not address general
jurisdiction further.

9
Company v. Montana Eighth Judicial District Court (2021)
141 S.Ct. 1017, 1024.)
Specific jurisdiction “hinges on the ‘“relationship among the
defendant, the forum, and the litigation.”’ [Citations.] It requires
‘“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.] Consistent with the constraints of due
process, ‘the defendant’s suit-related conduct must create a
substantial connection with the forum State.’ [Citation.]”
(Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 392 (Rivelli).)
Three requirements must be met for a California court to
exercise specific jurisdiction over an out-of-state defendant.
(Rivelli, supra, 67 Cal.App.5th at p. 392.) “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. [Citations.]” (Ibid.) The plaintiff “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. [Citations.]”
(Jacqueline B., supra, 68 Cal.App.5th at p. 253.)
As relevant to our analysis here, “[a]n out-of-state
defendant purposefully avails itself of a forum state’s benefits if
the defendant (1) purposefully directs its activities at the forum

10
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.
[Citations.]” (Jacqueline B., supra, 68 Cal.App.5th at p. 253.)
“[A]n out-of-state defendant’s conduct toward the forum
State or its residents is relevant to the jurisdictional analysis
only if that conduct is purposeful, deliberate, and intentional.
[Citations.] An out-of-state defendant’s contact with a forum
state that is ‘random[,]’ ‘fortuitous[,]’ or ‘attenuated’ is not
enough. [Citations.]” (Jacqueline B., supra, 68 Cal.App.5th at
p. 254.)
II. Standards of Review
On appeal, we independently review the trial court’s legal
conclusions bearing on personal jurisdiction. (Rivelli, supra,
67 Cal.App.5th at p. 393.) “If the facts giving rise to jurisdiction
are conflicting, we will not disturb the trial court’s express or
implied factual determinations where supported by substantial
evidence. [Citation.] ‘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.’
[Citation.]” (Ibid.)
III. Analysis
Having independently reviewed the record,7 we conclude
that Birenbaum failed to meet his burden of establishing, by a

7 The evidence relevant to our analysis below is largely
undisputed and, at most, presents mixed issues of law and fact.
Therefore, our independent review is warranted. (See Rivelli,

11
preponderance of the evidence, that Burrell and BDI purposely
availed themselves of the privileges of conducting activities in
California. Because specific jurisdiction is defeated on this basis
alone, we need not address whether Birenbaum’s claims relate to
or arise out of Burrell and BDI’s forum-related contacts or
whether the exercise of jurisdiction would be fair. (See Pebble
Beach Co. v. Caddy (9th Cir. 2006) 453 F.3d 1151, 1155 [“‘If any
of the three requirements is not satisfied, jurisdiction in the
forum would deprive the defendant of due process of law.’
[Citation.]”].)
The weight of the evidence indicates that Burrell and BDI
did not purposefully direct their activities at California residents,
purposefully derive a benefit from their activities in California, or
purposefully invoke the privileges and protections of California’s
laws. (See Jacqueline B., supra, 68 Cal.App.5th at p. 253.) We
come to this conclusion for two primary reasons.
First, the project was not located in California. The
physical location of the bitcoin mining facility may have been
undetermined when Burrell first met Birenbaum, but there is
nothing in the record to suggest that California was ever
considered as a possibility, and, by November 2017, it was settled
that it would be built in Montana. The December 31, 2017,
employment agreement identifies the location of the employment
as Butte, Montana (where the facility was physically located) and
Aspen, Colorado (from where Burrell oversaw activities related to
the project and BDI’s principal place of business). This strongly
suggests that Burrell sought to derive a benefit from his activities
in Montana and, to a lesser extent, Colorado—not California.

supra, 67 Cal.App.5th at p. 394; Integral Development Corp. v.
Weissenbach (2002) 99 Cal.App.4th 576, 585.)

12
 Second, rather than purposefully invoking the privileges
and protections of California’s laws, Burrell explicitly sought to
invoke those of Montana through the December 31, 2017,
employment agreement’s choice-of-law and forum selection
clauses.
“Choice-of-law and forum selection clauses, ‘standing
alone’, are not dispositive” to the issue of purposeful availment.
(T.A.W. Performance, LLC v. Brembo, S.p.A. (2020)
53 Cal.App.5th 632, 646 (T.A.W. Performance); cf. Burger King
Corp. v. Rudzewicz (1985) 471 U.S. 462, 482 (Burger King) [a
choice-of-law provision “standing alone would be insufficient to
confer jurisdiction”].) Nor do these clauses in private agreements
deprive a California court of jurisdiction if other bases for
jurisdiction are present. (Smith, Valentino & Smith, Inc. v.
Superior Court (1976) 17 Cal.3d 491, 495 (Smith).) But such
clauses “may ‘reinforce’ whether or not a foreign corporation has
made such ‘a deliberate affiliation with the forum state’ as to
support a conclusion that it should have reasonably foreseen
‘possible litigation there.’ [Citations.]” (T.A.W. Performance,
supra, at p. 646; see also Burger King, supra, at p. 482 [“Nothing
in our cases . . . suggests that a choice-of-law provision should be
ignored in considering whether a defendant has ‘purposefully
invoked the benefits and protections of a State’s laws’ for
jurisdictional purposes” (italics omitted)].)
Birenbaum contends that “[t]he main question on this
appeal . . . is whether a private agreement between two parties
can oust a court of its jurisdiction when other minimum contacts
exist.” We agree with Birenbaum that it cannot (Smith, supra,
17 Cal.3d at p. 495), but we disagree with him that this is a
question—let alone the main question—before us. Rather, we

13
conclude that given the Montana choice-of-law and forum
selection clauses in the December 31, 2017, employment
agreement and the lack of minimum contacts with California, the
weight of the evidence points away from Burrell and BDI’s
purposeful availment of California as a forum such that they
would not reasonably expect to be sued here.
We acknowledge that some evidence exists indicating a
connection between Burrell and BDI and California but find that
it is outweighed by the evidence against purposeful availment.
(See Jacqueline B., supra, 68 Cal.App.5th at p. 257 [weighing
“factors tend[ing] to point toward purposeful availment” with
those “point[ing] away from purposeful availment”].)
It is undisputed that Burrell and Birenbaum met on
December 10, 2017, in Los Angeles to negotiate details of
Birenbaum’s employment and compensation. But this meeting
was just one event during protracted negotiations that had
commenced by early November 2017 and concluded when the
December 31, 2017, employment agreement was signed.
Birenbaum attempts to characterize the Los Angeles meeting as
a critical moment in these negotiations, arguing in his reply brief
that “[i]t was not until the Los Angeles meeting, that the parties
negotiated and agreed on the terms of Birenbaum’s
employment[.]” This characterization is severely undermined by
Birenbaum’s own allegations in the first amended complaint that
parties, including Burrell and BDI, convinced him to start work
on the project in early November 2017 with the promise of a
forthcoming written contract affording him a base salary, shares
in the operating entity, and a percentage of revenue to be earned

14
from the mining equipment.8 Viewed in its proper context, we do
not find that the December 10, 2017, meeting in California is
sufficient to demonstrate Burrell and BDI’s purposeful availment
of the state.
It is also undisputed that Birenbaum worked remotely at
times from Los Angeles. But this fact points primarily to
Birenbaum’s own contacts with California—not that of Burrell or
BDI. (See Floyd J. Harkness Co. v. Amezcua (1976)
60 Cal.App.3d 687, 691 [“In examining the quality and nature of
the activities in this state, . . . we are not concerned with the
performance of the plaintiff in California but exclusively with the
nonresident defendant’s activities in this state”].) We have found
nothing in the record suggesting that Burrell required or

8 Specifically, the first amended complaint alleges: “In or
around early November 2017, the [defendants including Burrell
and BDI] convinced [Birenbaum] to commence work on the
project with the promise of a contract that would afford [him] a
base salary and shares in the operating entity as well as a
percentage of the revenue to be earned from the mining
equipment. Based on verbal and written representations made to
him by the [defendants including Burrell and BDI] that
[Birenbaum] would have a written contract containing the
foregoing terms, [Birenbaum] commenced work on the project in
or around November 2017. Ultimately, the [defendants including
Burrell and BDI] presented [Birenbaum] with a contract nearly
two months later, which modified the original agreement to
incorporate provisions that were less lucrative but provided for a
base salary, a signing bonus (but defendants modified the terms
of the bonus to alter the condition of payment) and ‘Membership
Unit Awards’ comprised of options and a percentage of the
investments and distributions of revenue paid to the [defendants
including Burrell and BDI].”

15
encouraged Birenbaum to work remotely from California.9
Rather, the employment agreement specifies the location of the
employment as Butte, Montana, and Aspen, Colorado; affords
Birenbaum paid time off for Montana state holidays; and is silent
regarding remote work.
Birenbaum points to the provision in the proposed
rescission that he was given on April 3, 2018, waiving any rights
under Civil Code section 1542,10 as evidence “firmly
demonstrat[ing]” that Burrell and BDI “anticipated being haled
into a California court for the very claims brought in this lawsuit,
and they sought Birenbaum’s agreement to the [p]roposed
[r]escission to shore up their defenses under California law.”
(Bolding omitted.) We cannot agree. The inclusion of a
boilerplate waiver of Civil Code section 1542 in a proposed
rescission that was never signed provides minimal, if any,
evidentiary support for Burrell and BDI’s purposeful availment of
the privileges of conducting activities in California. It may

9 In his opening brief, Birenbaum contends that after his
removal from the Butte bitcoin mining facility, “he was told to
work from California” and that Burrell and BDI “required him to
work from California[.]” Birenbaum does not cite to, nor have we
independently located, evidence in the record indicating such an
affirmative requirement that Birenbaum work in California.
Arguments in briefs are not evidence. (See In re Zeth S. (2003)
31 Cal.4th 396, 413–414, fn. 11 [“It is axiomatic that the unsworn
statements of counsel are not evidence. [Citations.]”].)

10 At the time, that section provided: “A general release does
not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his
or her settlement with the debtor.” (Former Civ. Code, § 1542.)

16
suggest that they were concerned that Birenbaum would seek
California as a forum for his claims, but that is not relevant to
our analysis. (See Pavlovich v. Superior Court (2002) 29 Cal.4th
262, 269 [explaining that it is the defendant’s intentionality that
is the focus of the purposeful availment inquiry].)
We also find the two cases upon which Birenbaum relies for
the proposition that “California courts routinely find sufficient
minimum contacts when, like here, a foreign person or entity
reaches out to negotiate a contract with California residents”—
Checker Motors Corp. v. Superior Court (1993) 13 Cal.App.4th
1007 (Checker) and Epic Communications, Inc. v. Richwave
Technology, Inc. (2009) 179 Cal.App.4th 314 (Epic)—to be easily
distinguishable.
In Checker, the Court of Appeal found that out-of-state
entities that sought and obtained millions of dollars in
investments from a California insurance company had sufficient
minimum contacts with California to confer personal jurisdiction
on the state court. (Checker, supra, 13 Cal.App.4th at pp. 1010–
1011, 1017–1019.) Although the out-of-state entities lacked “a
significant physical presence within California” (id. at p. 1017),
“there was a veritable ‘latticework’ of contacts linking [the
entities] and the State of California: not one but many calls and
other communications to California during the negotiations. The
execution in California of the legal documents which formed the
arrangement and created the partnership. The inclusion of a
contract term which purported to dispossess California
policyholders of their continuing interest in the partnership
should the insurance company become insolvent. A continuing
stream of payments from petitioners to California. A meeting in
California discussing partnership matters. And, ultimately, an

17
act outside California calculated to have detrimental impacts
inside California adversely affecting policyholders whom
California is committed to protecting.” (Id. at p. 1018.) No such
“‘latticework’ of contacts” (ibid.) found in Checker exists here
linking Burrell and BDI with California.
In Epic, a resident of Taiwan entered into a nondisclosure
agreement with a California business on behalf of her employer
and then travelled to California to negotiate an agreement that
contemplated the ongoing performance of services in California
by the California business. (Epic, supra, 179 Cal.App.4th at
pp. 319–320, 329.) The Court of Appeal found that the employee
and an entity she later formed had sufficient contacts with
California and could reasonably anticipate being sued there.
(Id. at pp. 329–331.) Here, in contrast, Burrell and BDI did not
seek out a California resident with whom to conduct business.
Rather, it was Weeks, a third party, who flew Birenbaum out to
New Mexico in order to introduce him to Burrell in regards to the
project. Nor did Burrell or BDI enter into an agreement
regarding the ongoing performance of services in California.
Finally, we have considered Casey v. Hill (2022)
78 Cal.App.5th 1143 (Casey) and conclude that it, too, is
distinguishable and does not sway us to find purposeful
availment.11 In Casey, a Missouri couple sued a California
corporation and its owner, a California resident, in Missouri state
court “for making deceptive and fraudulent representations to the
couple in the course of providing them with adoption facilitation

11 Birenbaum filed a letter informing us of Casey under
California Rules of Court, rule 8.254(a), which permits a party to
inform the court of “significant new authority” not available in
time to be included in the party’s last brief.

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services.” (Casey, supra, at p. 1153.) After a default judgment
was entered against the defendants in the Missouri case, the
couple applied to a California superior court for entry of
judgment on the Missouri judgment. (Id. at pp. 1153, 1156–
1158.) The application was granted, but the California superior
court later vacated the entry of the Missouri judgment, ruling
that the Missouri court’s exercise of jurisdiction over the
California defendants violated due process. (Id. at pp. 1158,
1161–1163.)
The Court of Appeal reversed the superior court’s order
vacating the Missouri judgment. (Casey, supra, 78 Cal.App.5th
at p. 1154.) It concluded that the superior court had ignored
undisputed jurisdictional facts sufficient to establish purposeful
availment of the Missouri forum by the California defendants.
(Casey, supra, at p. 1171.) That evidence showed that the
California defendants presented the Missouri couple with an
agreement to provide adoption facilitation services and, to
provide those services, the corporation sent numerous allegedly
fraudulent communications into Missouri, causing injury in
Missouri. (Id. at pp. 1171, 1173–1174.)
In Casey, sending communications into the forum state to
residents of that state was a material part of the defendants’
performance of the business agreement. For the reasons we have
discussed above, the same cannot be said for Burrell and BDI’s
California-related contacts.

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 DISPOSITION
The judgment is affirmed. Burrell and BDI are entitled to
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
HOFFSTADT

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