Filed 9/11/15 Boster Assocs. v. Dynamic Finance C orp. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT
DIVISION TWO

BOSTER ASSOCIATES LIMITED,

Plaintiff, Cross

- defendant and App ellant ,

v.
DYNAMIC FINANCE CORPORATION,

Defendant, Cross

- complainant and Appellant;
VIVIEN CHEN,

Cross

- defendant and Respondent. B252609 c/w B254451
(Los Angeles County Super. Ct. No. BC488552 )

APPEALS from orders of the Superi or Court of Los Angeles County

. Richard L. Fruin, Judge. Affirmed in part, reversed in part and remanded. Mayer Brown, John Nadolenco, Donald M. Falk, Christopher P. Murphy and Barrett Schreiner for Plaintiff, Cross

- defendant and Appellant.
Miller Barond ess, Louis R. Miller, A. Sasha Frid and Mira Hashmall; Gibson, Dunn & Crutcher, Theodore B. Olson, Julian W. Poon, Timothy Loose and Michael Holecek for Defendant, Cross

- complainant and Appellant. Zaccaro Morgan, Thomas A. Zaccaro, Nicolas Morgan and Peter T. Brejcha; Paul Hastings, Eleanor K. Mercado and Elizabeth Mueller for Cross

- defendant and Respondent.2

This consolidated appeal concerns the denial of a Code of Civil Procedure section
425.16 1 special motion to strike a cross

- complaint filed by Dynamic Finance Corporation (DFC) against Boster Associates Limited (Boster) and Vivien Chen (Vivien), 2 and the granting of a motion by Vivien to quash service of summons for lack of personal jurisdiction. We affirm the order granting the motion to quash. We rev erse the order denying the anti

- SLAPP motion and remand the matter to the trial court to determine
whether DFC has demonstrate d a probability of prevailing on the merits of it s cross

claims against Boster. BACKGROUND Parties Boster is a British Virgin Isl ands corporation and a wholly owned subsidiary of Sai Wo Enterprises Limited (Sai Wo) , a Hong Kong c orporation that was wholly owned by Chen Din

- Hwa (Chen) until his death in 2012. DFC is a California corporation and a wholly owned subsidiary of Dynamic H olding Corporation (DHC). DFC and DHC were also owned or controlled by Chen until 2003. Boster, DFC, and DHC were three of the many companies owned or controlled by
Chen , who also owned and controlled the Nan Fung Group (Nan Fung Group ), a privately held business with interests in shipping, property holding and development, investments, and financial services. Chen’s two daughters are Vivien and Angela Sabella Chen (Angela). Angela is
the President of DHC and has owned or controlled DHC and DFC since 20 03. Vivien is the Chairman, Managing Director, and Executive Director of Nan Fung International Holdings Ltd. (Nan Fung) . Nan Fung and its subsidiaries comprise the Nan Fung Group. Angela and Vivien both reside in Hong Kong.

1 All further statutory references are to the Code of Civil Procedure, unless otherwise stated. A special motion to strike is also referred as an anti

- SLAPP motion.

2 Because some of the individuals in this case have the same surnames, we refer to them by their first names to avoid confusion.3

The Boster/DFC loan particip ation agreement In July 2000, DFC made an $18 million real property investment in Temecula, California by lending $18 million to Rancho California Country Club LLC (Rancho California). Two weeks later, DFC and Boster entered into a loan participation
agr eement (participation agreement) pursuant to which Boster purchased a 99 percent interest in the $18 million Rancho Califor nia loan. The Rancho California investment was structured as a loan transaction, and the loan participation agreement between Boster and DFC was entered into, in order to take advantage of the “portfolio loan” exception contained in section 881(c) of the Internal
Revenue Code (26 USC § 881). The portfolio loan exception allows a foreign lender to
avoid taxes on interest from loans fun ded by the lender to a U.S. borrower. At the time the Rancho California loan and the participation agreement were made, Chen owned and
controlled both DFC and Boster. Rancho California eventually proved to be an unsuccessful investment. The developer co uld not obtain the proper entitlements, the amount outstanding on the $18 million loan exceeded the value of the property, and Rancho California defaulted on the
loan in 2004. Boster’s action for breach of the participation agreement In July 2012, Boster sued DFC for breach of the participation agreement. Boster alleged that DFC had failed to provide an accounting as required by the participation agreement, released substantial collateral for the Rancho California loan without Boster’s consent, and failed to make payments owed to Boster under the participation agreement.
DFC’s cross

- action against Boster and Vivien After receiving an assignment of Angela’s litigation claims, DFC filed a cross

complaint against Boster and Vivien, alleging causes of action for breach of fiduciary duty, constructive fraud, deceit, negligent misrepresentation, and promissory estoppel, based on Vivien’s allegedly tortious conduct in seizing exclusive control of Nan Fung, engaging in self

- dealing transactions, and breaching cont ractual and fiduciary duties owed to Angela by seeking to misappropriate assets that Chen had gifted to Angela. The4

cross

- complaint further alleged that Boster and Vivien were agents, alter egos, and co

conspirators of each other, and that Boster particip ated in or facilitated Vivien’s attempt to misappropriate the assets gifted to Angela. Chen’s principle of equality and gifts to Angela and Vivien DFC alleges in its cross

- complaint that Chen’s succession plan for the Nan Fung Group and for his estate wa s to have Angela and Vivien jointly manage the Nan Fung Group and to divide his assets equally between his two daughters pursuant to a “principle of equality agreement.” Both Angela and Vivien agreed to abide by this agreement, and a fiduciary relationshi p was thereby allegedly created among the parties, giving rise to duties of care and loyalty to one another. Consistent with the principle of equality agreement, Chen gave each daughter equivalent gifts of HK$3.1 billion (approximately $400 million U.S. d ollars) in
December 2003. To Angela, Chen gifted through a trust the cash necessary to purchase DHC, the entity that held Chen’s U.S. real property assets. To Vivien, Chen gifted non

U.S. property assets of equivalent value. Vivien agreed, orally and in writing, that Chen’s division of assets between his daughters implemented his principle of equality. In a December 11, 2003 document, Vivien wrote: “‘ I agree with the principle of equality with regard to the above mentioned trust. The agreement between [Vivien] and [Angela] merely implements that principle. Therefore, [Angela] can obtain assets of equal value as
the set

- up of the trust is underway. ’” Chen’s illness and Vivien’s alleged malfeasance Chen was diagnosed with Alzheimer’s disease in 1995. By 2006, his mental health had deteriorated significantly. As Chen’s mental condition worsened, Vivien took control of Nan Fung and allegedly used the company to engage in self

- serving transactions that benefitted her personally. In 2008, Angela petitio ned a court in Hong Kong to declare Chen to be a mentally incapacitated person and to appoint a conservator for Chen’s assets. The Hong Kong court granted the petition and a conservator was appointed; however, the conservator never assumed any management control over Nan Fung and its affiliated companies, and5

Vivien continued to control the Nan Fung Group’s operations. In 2009, Vivien succeeded Chen as Chairman, Managing Director, and Executive Director of Nan Fung.
Chen died in June 2012. Thereafter, V ivien allegedly caused Boster to file the instant action to enforce the participation agreement as part of an alleged overall scheme to nullify Chen’s gifts to Angela. 3
The cross

- complaint alleges that Boster is a shell corporation, with no offices, depar tments, or employees. Its only two directors are Nan Fung employees Patrick Yu, a supervisor in Nan Fung’s information technology department, and Gladys Au, Vivien’s former long

- time secretary who now works in Nan Fung’s personnel department. 4 The

cross

- complaint further alleges that Vivien exercises complete dominion, control, and
decision

- making authority over Boster, and that Boster i s Vivien’s agent and alter ego.
Anti

- SLAPP Motion Boster filed an anti

- SLAPP motion on October 30, 2012, arguing that t he claims asserted against it in DFC’ s cross

- complaint arise solely out of the filing of Boster’s action for breach of the participation agreement

-- a constitutionally protected right of petition. On November 30, 2012, Vivien filed her own anti

- SLAPP mot ion and join e d in Boster’s anti

- SLAPP motion.

3 The cross

- complaint also alleges that Chen gifted another U.S. property, Two Bear Ranch, to Angela. Two Bear Ranch was ac quired through a portfolio loan transaction in which Angela executed a $30 million promissory note in favor of Rostack Investments, Inc. (Rostack), an entity formerly owned or controlled by Chen. Chen also gifted Angela approximately $2.8 million annually to pay the interest on the Rostack note. Vivien acknowledged and agreed that Chen gifted Two Bear Ranch to Angela in accordance with the principle of equality agreement. In violation of that agreement, Vivien, who now allegedly controls Rostack, caused Rostock to file a separate action to enforce the promissory note. The lawsuit between Rostack and Angela is the subject of a separate appeal.

4 During the course of the litigation, Au and Yu resigned as Boster’s directors and were replaced by other Nan Fung executives

.6

DFC filed a motion for leave to conduct discovery in order to oppose the anti

SLAPP motion, and the trial court granted that request, allowing written discovery and depositions of Vivien and of Boster’s curre nt and former d irectors. After discovery was concluded, DFC filed its opposition to t he anti

- SLAPP motion, arguing that the gravamen of its claims was based not on the filing of Boster’s breach of contract action, but on Vivien’s alleged breaches of the p rinciple of equality agreement and fiduciary duties owed pursuant to that agreement. In support of its opposition, DFC submitted, among other evidence, declarations by DHC’s former chief financial officer and by attorneys who helped structure the Rancho C alifornia loan transaction to qualify for the portfolio loan exemption. DFC also submitted Angela’s declaration, documents evidencing the principle of equality agreement, and documents evidencing Vivien’s agreement that Chen’s gift of DHC and its assets t o Angela were consistent with the p rinciple of equality agreement. The documentary evidence included (1) a January 2003 handwritten note by Vivien stating: “I promise that the amount I receive from father’s estate will definitely
not be more than what An gela Chen receives. I surely believe that father will distribute evenly”; (2) contemporaneous handwritten notes from a January 24, 2003 meeting attended by Chen, his wife, Angela, Vivien, and senior staff members at Nan Fung documenting a discussion that Chen’s assets would be allocated in accordance with the principle of equality; (3) a handwritten table prepared by Vivien in July 2003 setting forth agreed

- upon gifts by Chen to Vivien and Angela; (4) a “proposal form” used by Chen in
his business to confi rm transactions stating that “Chairman Chen will transfer the U.S. real estate property and the assets under the name of Dynamic Holdings Corporation into the irrevocable trust of [Angela] Chen and these assets will be deducted from the total
assets that C hairman Chen has decided to give to [Angela] Chen, so that the assets that Chairman Chen will be giving to [Angela] Chen and [Vivien] Chen will be equal according to the principle of equality that [ C ] hairman Chen has decided on.” In the same document, Viv ien stated her agreement by writing: “I agree with the principle of equality with regard to the above mentioned trust. The agreement between [Vivien] and [Angela]7

merely implements that principle. Therefore, [Vivien] can obtain assets of equal value as
the set

- up of the trust is underway.” Angela’s declaration describes the structure and sequence of the Rancho California loan transaction, including losses incurred following Rancho California’s 2004 default on the $18 million loan made by DFC. In her de claration, Angela states that Boster made no inquiries or demands concerning the participation agreement until after Chen was declared mentally incapacitated in November 2008. Angela further states that Chen would never have allowed Boster or any of the e ntities he controlled to sue DFC and thereby invalidate the gifts he had made to her. After Chen’s death, control of his businesses and assets passed to the executors of his will. Vivien is one of the executors; Angela is not. Angela’s declaration state s that while Chen was alive but suffering from advancing Alzheimer’s disease, Vivien repeatedly asked Chen to sign documents approving complex transactions that he could not appreciate or understand, given his impaired mental state. Some of these transact ions involved self

- dealing and secret profiteering by Vivien, or diversion of corporate opportunities to compan ies owned or controlled by her. DFC submitted deposition testimony by Grace Au and Patrick Yu, Boster’s sole
directors at the time instant actio n was commenced. Au and Yu both testified that they were appoin ted to Boster’s board by Chen. Both confirmed that Boster has no employees, and that Boster’s legal, accounting, and secretarial needs are met by Nan Fung employees. Au confirmed that Boster ’s sole business activity is the prosecution of its lawsuit against DFC. DFC also submitted deposition testimony by Vivien stating that Au and Yu are employees of Nan Fung Development Limited, a company Vivien has controlled as chairperson since 2009. Vi vien also testified that she has known Au for approximately 29 years, and that Au was her former secretary. In reply to DFC’s opposition, Boster submitted a declaration by Vivien stating that she does not serve as an officer, director, or employee of eith er Boster or Rostack; that8

she possesses no decision

- making authority over either of those companies; and that she did not authorize, direct, or ratify the filing of the instant action or the action by Rostack against Angela. Boster also submitted evidenc e that before commencing the instant action, its Hong Kong counsel corresponded with the attorney representing Chen’s conservator. Chen’s conservator ’s attorney responded, five days before Chen’s death, that the conservator “is content to leave this matte r in the hands of the management of Boster and its legal advisers (and consequently for the management of Boster to decide whether to commence proceedings against DFC).” After Chen’s death, Boster’s Hong Kong counsel also corresponded with the attorneys r epresenting Chen’s estate . The estate’s attorneys responded as follows in a letter dated May 24, 2013 : “The Executors have considered Boster’s claims and, based on the information presently available, we
confirm that the Executors are also content that B oster pursue its claim against DFC and to leave matters in the hands of Boster’s directo rs, management and legal advis ors.”
T he trial court denied Boster’s ant i

- SLAPP motion, concluding that the claims asserted in DFC’s cross

- complaint do not arise from t he filing of Boster’s complaint, but are instead based upon “an underlying, long

- standing and broader dispute between Angela Chen and Vivien Chen from which both Boster’s complaint and DFC’s cross

complaint arise.” The trial court found that “Boster is no t and never was an independent actor” but rather an entity “organized and funded within Nan Fung to benefit DFC as another Nan Fung entity.” The court further found that the loan participation agreement between
Boster and DFC was not an arms

- length transa ction. Because the trial court concluded that DFC’s cross

- complaint did not come within the ambit of section 425.16, it did not address the merits of DFC’s claims or its probability of prevailing on those claims. Motion to quash On November 19, 2012 ( b efore filing the November 30, 2012 anti

- SLAPP motion
and joinder to Boster’s anti

- SLAPP motion ) , Vivien filed a motion to quash for lack of personal jurisdiction , or in the alternative, to stay or dismiss the action on the ground of
forum non conveniens. At the same time, Vivien filed a d emurrer to the cross

- complaint.9

In support of her motion to quash, Vivien submitted her own declaration in which
she stated that she is a citizen and resident of Hong Kong and the chairman and managing
director of Nan Fun g. Vivien further stated in her declaration that Nan Fung and the Nan Fung Group have no offices or employees in California or the United States, and that Boster and Rostock are not subsidiaries of Nan Fung nor are they part of the Nan Fung Group. Vivien stated that she is not an officer, director, or employee of either Boster or Rostock, that she possess es no decision

- making authority over either of those companies,
and that she did not authorize, direct, or ratify the filing of the instant action by Bos ter or the action by Rostack against Angela. Vivien further stated that she conducts no business in California, either individually or in her capacity as an officer and director of the Nan Fung Group, that she owns no property or bank accounts in Californ ia, and holds no California professional licenses or certifications. In response to Vivien’s motion to quash, DFC filed an ex parte application for leave to conduct jurisdictional discovery. At the December 3, 2012 hearing on DFC’s ex parte application, the trial court ordered the parties to submit brief s addressing the issue
of wh ether Vivien ’s filing of an anti

- SLAPP motion constituted a general appearance. The court continued the hearings on the motion for jurisdictional discovery and the
moti on to qu ash.
At a December 19, 2012 hearing, the trial court ruled that Vivien’s filing of the
anti

- SLAPP motion did not constitute a general appearance. 5 The court subsequently granted DFC’s motion to conduct discovery. Following a December 16, 2013 hearing on the merits of Vivien’s motion to quash, the trial court granted the motion on January 15, 2014. In doing so , the trial court found that there was no evidence to support DFC’s allegation that Vivien controlled

5 As the result of a clerical error, an order denying the motion to quash was erroneously posted on the Superior Court’s website on December 21, 2012. The trial court explained at a January 3, 2013 hearing that the December 21, 2012 orde r was issued by mistake, and that a subsequent order issued on December 31, 2012, granting the motion to quash was the court’s intended and final ruling on the matter. The trial court did not, as DFC contends, “inexplicably reverse itself” in ruling on th e motion to quash.10

Boster and Rostock, as her agents, to engage in wrongful conduct in California ; that the evidence showed that Boster’s action against DFC was initially approved by Chen’s court appointed conservator and is now being prosecuted by the executors of Chen’s estate; and that the gravamen of DFC’s claims a gainst Vivien arise not from Vivien’s activities in California, but rather, from the purported breach of obligations under a “principle of equality” agreement made in Hong Kon g among residents of Hong Kong.
The trial court concluded that California has li ttle interest in adjudicating a dispute among Hong Kong residents regarding alleged tortious conduct carried out in Hong Kong concerning assets gifted to Angela in Hong Kong. In view of its ruling, t he trial court did not address Vivien’s alternative moti on to stay or dismiss the action based on forum

non conveniens. The instant appeal Boster appeal s from the order denying its anti

- SLAPP motion, and DFC appeals from the order granting Vivien’s motion to quash. We granted DFC’s motion to consolidate the t wo appeals. DISCUSSION
I. Anti

- SLAPP Motion
A. Section 425.16 Section 425.16 was enacted “to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petiti on for the redress of grievances. [Citation.]” ( Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315 ( Club Members ).) As relevant here, subdivision (b)(1) of section 425.16 p rovides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the cou rt determines that the plaintiff has established that there is a probability that the plainti ff will prevail on the claim.”11

Determining whether section 425.16 bars a given cause of action requires a two

step analysis. ( Navellier v. Sletten (2002) 29 Cal. 4th 82, 88 ( Navellier ) .) First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action “aris[es] from an y act

. . . in furtherance of the [moving party’s] right of petition or free speech.” (§ 425.16, subd. (b)(1); Navellier, supra , at p

. 88.) “‘A cause of action “arising from” [a] defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ [Citations.] ‘Any act’
includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.]” ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 ( Rusheen ).) The scope of the statute is broad. In authorizing the filing of a special motion to strike, the Legislature “expressly provided that section 425.16 should ‘be construed broadly.’ ” ( Club Members, supra , 45 Cal.4th at p. 315.)
If the court finds that a defendant has made the requisite threshold showing , the burden then shifts to the plaintiff to demonstrate a “p robability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); Navellier, supra , 29 Cal.4th at p. 88.) In order to demonstrate a probability of prevailing, a party opposing a special motion to strike under section 425.16 “‘“must demon strate that the complaint is both legally
sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’ [Citation.]” ( Jarrow Formulas, Inc. v. LaMarche (200 3) 31 C al.4th 728, 741, fn. omitted.)
A trial court’s order granting a special motion t o strike under section 425.16 is
reviewed de novo. ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
B

. DFC’s claims against Boster arise from protec ted activity
Boster contends all of the claims asserted against it in the cross

- complaint ar ise out of the filing of the breach of contract action

-- protected petitioning activity under section 425.16. Filing a lawsuit is an exercise of a party’s consti tutional right of petition. ( Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 ( Briggs ); Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087 ( Chavez ).) “‘“[T]he constitutional right to petition

. . . includes the basic act of fili ng litigation or otherwise seeking12

administrative action.”’ [Citations.]” ( Briggs, supra , at p. 1115.) Thus, “a cause of action arising from a defendant’s alleged improper filing of a lawsuit may appropriately be the subject of a section 425.16 motion t o strike.” ( Chavez, supra , at p. 1087.) To determine whether the causes of action asserted in DFC’s cross

- complaint arise from acts in furtherance of Boster’s right of petition, we must “consider the pleadings
, and supporting and opposing affidavits stat ing the facts on which the liability or defense is based.” (§ 425.16, subd. (b)(2).) In doing so, we “examine the principal thrust or
gravamen ” of those causes of action to determine whether the anti

- SLAPP statute applies. ( Ramona Unified School Dist. v . Tsiknas (2005) 135 Cal.App.4 th 510, 519

- 520.) We assess the gravamen of DFC’s claims by identifying “‘[t]he allegedly wrongful and injury

- producing conduct

. . . that provides the foundation for the claim.’ [Citation.]” ( Hylton v. Frank E. Rogozienski , Inc. (2009) 177 Cal.App.4 th 1264, 1272.) As our Supreme Court has explained, “[t]he anti

- SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to
his or her asserted liability

-- and whether that activity constitutes protected speech or petitioning. ” ( Navellier, supra , 29 Cal.4 th at p. 92.) A court considering an anti

- SLAPP motion must therefore examine the allegedly wrongful conduct itself, without particular
heed t o the form of action within which it has been framed. ( Id. at pp. 92

- 93.) We apply these principles to each of the causes of action asserted against Boster. DFC’s constructive fraud cause of action is premised on Vivien’s alleged breach of a fiduciary d uty owed to Angela under the principle of equality agreement. The alleged breach consists of “seeking to go after Mr. Chen’s HK$3.1 billion gift to Angela” and “seeking to enforce loan obligations in the Boster Participation Agreement

. ” Boster’s liabili ty is premised on the following allegations: (1) “ Boster had a confidential relationship with Angela as a result of Mr. Chen’s ownership and control over B oster and DHC/DFC” ; (2) “Boster, through directors Patrick Yu and Gladys Au, knew about this
relatio nship of trust and confidence between Boster and DHC/DFC” ; and (3) “ Among other things, Boster facilitated Vivien’s challenge to Mr. Chen’s gift of DHC and DFC to Angela by seeking to enforce the Participation Agreement.”13

Neither the cross

- complaint nor t he evidence submitted in opposition to the anti

SLAPP motion specifies what “other things” Boster did to facilitate Vivien’s alleged
malfeasance. The only activity by Boster that DFC alleges as the basis for imposing
constructive fraud liability i s “seeki ng to enforce the Participation Agreement,” i.e., filing
the instant breach of contract action

-- protected petitioning activity under section 425.16. DFC’s causes of action for deceit and negligent misrepresentation are similarly premised on allegations that Vivien falsely represented to Angela that she would comply with the principle of equality agreement. Although the cross

- complaint alleges that Boster “knowingly and intentionally induced, participated in and provided substantial assistance to Vivien’ s” deceit and misrepresentations, “ as described herein , ” there is no description or a llegation of any activity by Boster , nor was there evidence of any activity by Boster except seeking to enforc e t he participation agreem ent by filing the instant
lawsuit

- - protected activity under the anti

- SLAPP statute

. DFC’s cause of action for promissory estoppel is based on allegations that Vivien made false promises to Angela that she would honor the principle of equality agreement and that “Boster knowingly and inte ntionally induced, participated in and provided substantial assistance to Vivien’s false promises to Angela, as described herein.” The

cross

- complaint does not allege when or how Boster induced, participated in or provided assistance to Vivien’s false pro mises, nor was there evidence of such inducement, participation, or assistance. The only specific fact upon which Boster’s alleged liability is based is enforcement of the participation agreement

-- i.e., filing the instant lawsuit.
Because all of the ca uses of action against Boster are based on protected petitioning activity

-- the filing of a breach of contract action to enforce the participation agreement

-- the trial court erred by denying Boster’s anti

- SLAPP motion. In so doing, the trial court impr operly conflated Boster’s protected activity with unprotected alleged misconduct by Vivien. “[A] plaintiff cannot frustrate the purpose s of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity
under t he label of one ‘cause of action.’” ( Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4 th 294, 308 , fn. omitted .)14

Although the cross

- complaint alleges generally that Boster was Vivien’s agent and
that each of the cross

- defendants was “the age nt, employer, partner, joint venture, alter ego, affiliate and/or co

- conspirator of the other,” DFC presented no specific facts or evidence to support the existence of any such relationship. The trial court did not find
that Boster’s separate corporate id entity should be disregarded or that Boster and Vivien

were agents, partners, co

- conspirators, or alter egos of one another, nor was there any evidence to support such finding s

. (See Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300 [two general re quirements for alter ego liability are “‘ a unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist ’” and “‘ if the acts are treated as those of the corporation alone, an inequitable
result will f

ollow ’ ”].) There was evidence, on the other hand, that Vivien is not a director, officer, shareholder, or employee of Boster, and that Boster is owned by Sai Wo , an entity owned by Chen’s estate. The re was no valid legal basis for attributing Vivien’s
al leged actions to Boster. The trial court accordingly erred by considering Vivien’s activities, rather than Boster’s, when determining the gravamen of the claims asserted against Boster and by denying Boster’s anti

- SLAPP motion on that basis . ( Navellier,

supra , 29 Cal.4 th at p. 92.) Because Boster made the requisite threshold showing that the causes of action asserted against it arise from protected activity, the trial court must de termine whether DFC has demonstrated a probability of prevailing on those causes of action. We remand
the matter to the trial court for that determination. II. Motion to Quash
DFC co ntends Vivien made a general appearance by filing a joinder to Boste r’s
anti

- SLAPP motion and that the trial court misconstru ed section 418.10, s ubdivision (e) in granting Vivien’s motion to quash. DFC further contends the trial court erred by concluding that Vivien lacks the requisite minimum contacts for the court to exercise personal jurisd iction over her in California.15

A. Vivien’s joinder in the anti

- SLAPP motion did not constitute a general
appearance “It has long been the rule in California that ‘a party waives any objection to the court’s exercise of personal jurisdiction when the party makes a general appearance in the action.’ [Citatio ns.] ” (

Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 419 (

Air Machine ).) Section 1014 states that a defendant generally appears in an action “when the defendant answers, demurs, files a notice of motion to strike, files a
notice of m otion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.” (§ 1014.) In addition, a defendant wh o invokes the authority of the court on his or her behalf or who affirmatively seeks relief available only if the court has jurisdiction over the defendant has also made a general
appearance. ( Factor Health Management v. Superior Court (2005) 132 Cal.App. 4th 246,
25 0.) Section 418.10 provides an important exception to the foregoing jurisdictional principles. As relevant here, section 418.10, subdivision ( e ) allows a defendant or cross

defendant to file a motion to quash “and simultaneously answer, demur, or move to strike the complaint or cross

- complaint” without being deemed to have appeared in the action. (§ 418.10, subd. (e).) Subdivision (e)(1) of section 418.10 provides in relevant part : “Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance,
unless the court denies the motion made under this section. ”

1. An anti

- SLAPP motion is a permissible act under section 418.10 , subdivision (e)
DFC argues that section 418.10, subdivision (e) allows the filing of only three enumerated pleadings, and that the trial court improperly expanded the list of permissible pleadings to include an anti

- SLAPP motion. That argument ignores the plain lang uage of
the statut e, which is broadly inclusive : “ no act

. . . including filing an answer, demurrer, or motion to strike constitutes an appearance.” (§ 418.10, subd. (e) (1) , italics added.)16

DFC’s narrow interpretation of the statute is also inconsistent with applicable c ase authority

. Courts have construed the term “act” in subdivision (e)(1) of section 418.10 broadly to mean any act, and not just the filing of an answer, demurrer, or motion to strike. ( Air Machine, supra , 186 Cal.App.4th at p. 427; Ro y v. Superior Court (2005) 127 Cal.App.4th 337, 345.) In Air Machine , the court concluded that the term “act” in subdivision (e)(1) of section 418.10 should be construed broadly to mean “ any act, and is not limited to an ‘act’ that is defensive in nature. ” ( Air Machine , at p. 427.) The court in
Air Machine based its conclusion on several factors, including the statutory language and legislative history and intent. The court noted that “section 418.10, subdivision (e)(1) specifically references section 1 014, which is a non
- exhaustive statutory list of acts constituting a general appearance” and that “[it] would make little sense to limit subdivision (e)(1) to an answer, demurrer or motion to strike . . . when the issue of whether a party engaged in an ‘ac t’ that amounts to an appearance under section 1014 is ‘fact specific.’” (

Air Machine , a t p. 426.) The court in Air Machine further noted that the history of section 418.10 reflected the Legislature’s intent to eliminate “‘ traps for the
unwary ’ ” and that ignoring the word “including” in subdivision (e)(1) and requiring parties to litigate the derivative issue of whether, for purposes of the statutory safe harbor, a party engaged in acts or activities that were “defensive” in nature, would frustrate the
le gislative intent. (

Air Machine , at p. 426.) Finally, the court stated that its decision did “not rewrite California law regarding general and special appearances” because under subdivision (e)(3) of section 418.10, a party would still be deemed to have “ generally appeared” in an action if it failed to file a motion under subdivision (a) before or simultaneously with an act that would otherwise constitute a general appearance. ( Air Machine , at p. 426.) We find the foregoing analysis to be sound and apply it here. The filing of an anti

SLAPP motion, when made simultaneously with or after a motion to quash, does not constitute a general appearance. (§ 418.10, subd. (e); Air Machine, supra , 186 Cal.App.4th at p. 427.)17 2. Section 418.10 , subdivision (e) protects acts taken after filing a motion to quash DFC contends section 418.10, subdivision (e) requires a defendant to simultaneously file an enumerated pleading with a motion to quash in order to avail itse lf of the statutory safe harbor. It argues tha t Vivien’s anti

- SLAPP motion and joinder in Boster’s anti

- SLAPP motion, filed after her motion to quash, was a general appearance resulting in a waiver o f her jurisdictional objections. DFC’s argument was expressly rejected by the court in Air Machine . I n that case, the defendant filed a motion to quash under section 418.10, subdivision (a) and subsequently served a statutory settlement offer under section 998. The trial court treated the section 998 offer as a general appearance, and the appellate court reversed , noting as follows : “Subdivision (e) of section 418.10 states that a party may make a motion under subdivision (a) of that statute and simultaneously move to answer, demur or move to
strike

. . . . [T]he protection afforded a party under subdivi sion (e) of section 418.10 also applies to situations such as the instant case, where a party first files a motion under
subdivision (a) of that statute.” ( Air Machine, supra , 186 Cal.App.4th at p. 417, fn. 3.)
The court in Air Machine reasoned that alth ough the statutory language states that a defendant may file a motion to quash “and simultaneously answer, demur or move to strike” (§ 418.10, subd. (e) , italics added ), the legislative history to subdivision (e) shows that a party will not be deemed to ha ve made a general appearance if a motion to quash is
filed before filing an answer, demur, or motion to strike: “[ ‘ Senate Bill No. 1325] would provide that a defendant “ may ” move to quash service concurrently with a substantive

r e spon s e to the co m plaint w ithout being penalized for failing to move to quash first, but
does not require a concurrent filing. Under this bill, a defendant still could opt to challenge jurisdiction with a motion to quash prior to answering, demurring to, or moving
to strike the co mplaint

. ’]; Assem. Com. on Judiciary A nalysis of Sen. Bill No. 1325 (2001

- 2002 Reg. Sess.) as amended Apr

. 9, 2002 , p. 4 [same].)” ( Air Machine, supra , 186 Cal.App.4 th at pp. 421

- 422.) We find the court’s reasoning in Air Machine to be persuasive and app ly it here. Vivien’s joinder in Boster’s anti

- SLAPP motion, filed after18

the filing of a motion to quash under section 418.10, subdivision (a), did not constitute a general appearance resulting in a waiver of her objections to the trial court’s exercise of personal jurisdiction over her. ( Id. at pp. 427

- 428. ) DFC argues that Vivien submitted to the court’s jurisdiction by litigating the
merits of the anti

- SLAPP motion. It cites State Farm General Ins. Co. v. JT’s Frames,
Inc. ( 2010) 181 Cal.App.4th 429 ( JT’s Frames ) in support of its position. That case, however, is distinguishable. The defendant in JT’s Frames chose to litigate the merits of the action by litigating the merits of a motion for summary judgment after its motion to quash for lack of perso nal jurisdiction had been denied but while a writ petition seeking review of the order denying the motion to quash was pending. ( Id. at pp. 435

- 436.) The
court in JT’s Frames noted that while under subdivision (e) of section 418.10, “[a] party
may answer , demur, move to strike and perform other actions related to the merits without fear of accidentally waiving a potentially meritorious attack on personal jurisdiction,” the statute did not change the essential rule that a defendant submits to the court’s j urisdiction by participating in the action in a manner that recognizes the court’s jurisdiction. (

JT’s Frames , at p. 441.) Subdivision (e), the court stated, “merely delays the effect of such actions until the motion to quash is denied or, if the defenda nt seeks writ review, until proceedings on the writ have concluded. Once the motion is denied or writ proceedings have concluded, the actions undertaken by the defendant while the motion or writ was pending that recognized the court’s jurisdiction will be ‘deemed’ to constitute a general appearance.” ( JT’s Frames , at p. 441.) The court in JT’s Frames concluded that by participating fully in the merits of the litigation while its writ petition was pending, the defendant in that case had submitted itself t o the jurisdiction of the court. ( Ibid. ) In the instant case, Vivien’s motion to quash was not denied, but was still pending
at the time the anti

- SLAPP motions were being litigated. Her motion to quash was subsequently granted, and the filing and litiga ting of those motions accordingly were never deemed to constitute a general appearance.19

B. Merits of Vivien’s motion to quash

“ When a nonresident defendant challenges personal jurisdiction, the plaintiff bears the burden of proof by a preponderance of t he evidence to demonstrate the defendant has sufficient minimum contacts with the forum state to justify jurisdiction. [Citations.] The plaintiff must ‘ present facts demonstrating that the conduct of defendants related to the pleaded causes is such as to constitute constitutionally cognizable “minimum contacts.” [Citation.] ’ [Citation.] ” ( DVI, Inc. v. Superior Court (2002) 104 Cal.App.4 th 1080, 1090.) “Under the minimum contacts test, ‘an essential criterion in all cases is whether
the “ quality and nat ure ” of the defendant’s activity is such that it is “ reasonable ” and

“ fair ” to require him to conduct his defense in that State.’ [Citations.] ” ( Pavlovich v. Superior Court (2002) 29 Cal.4 th 262, 268 ( Pavlovich ) .) To the extent this determination depend s on issues of fact, it will not be disturbed on appeal if supported by substantial evidence. ( Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, 449 ( Vons ).) Personal jurisdiction may be general or specific. General jurisdiction exists when the defendant has such pervasive contacts with the forum state that they take the place of physical presence in the forum as the basis for jurisdiction. ( Vons , supra , 14 Cal.4 th at p. 446.) “Specific jurisdiction exists when, though the defendant la cks such pervasive forum contacts that he may be treated as present for all purposes, it is nonetheless proper to subject him to forum state’s jurisdiction in connection with a particular controversy.” ( Epic Communications, Inc. v. Richwave Technology, In c. (2009) 179 Cal.App.4 th 314, 327 ( Epic Communications ). ) DFC does not challenge the trial court’s ruling that it has no general jurisdiction over Vivien. W e are therefore concerned only with the sufficiency of Vivien’s contacts to establish specific ju risdiction.

“‘ A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “ the defendant has purposefully availed himself or herself of forum benefits ” [citation]; (2) “ the ‘ controversy is related to or “ arises out of ” [the] defe ndant’s contacts with the forum’ ” [citations]; and (3) “‘ the assertion of personal jurisdiction would20

comport with “fair play and substantial justice ”’” [c itation ]

. ’ [Citation.]” ( Epic Communications, supra , 179 Cal.App.4 th at p. 327.)
When a nonresiden t defendant challenges personal jurisdiction, the plaintiff must prove, by a preponderance of the evidence, the factual bases justifying the court’s exercise of jurisdiction. ( Pavlovich, supra , 29 Cal.4 th at p. 273.) To sustain this burden, the plaintiff must do more than allege jurisdictional acts; the plaintiff must provide affidavits and other competent evidence of jurisdictional facts. ( BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4 th 421, 429.) If the plaintiff meets its burden, the
burden then shifts to the defendant to present a compelling case that the exercise of jurisdiction would be unreasonable. ( Pavlovich , at p. 273.) The trial court concluded there was insufficient evidence of minimum contacts between Vivien and the State of Cali fornia to establish specific jurisdiction. Substantial evidence supports this conclusion.

1. Purposeful availment To establish purposeful availment, a plaintiff must show that “‘ the defendant purposefully and voluntarily directs his activities toward the forum. ’ ” ( Pavlovich, supra , 29 Cal.4 th at p. 269.) This requirement “‘ ensures that a defendant will not be haled into a jurisdiction solely as a result of “ random, ” “ fortuitous , ” or “ attenuated ” contacts [citations], or of the “ unilateral activity of another party or a third person. ” [Citations.] ’ [Citation.]” ( Ibid. ) DFC argues that it presented the following evidence that Vivien purposefully
directed her activities toward California: i n 2003 and 2005, Vivien made false promises to abide by Chen ’s principle of equality and not to oppose Chen’s gift of the Two Bear Ranch to Angela, and V ivien caused Boster and Rostack to file lawsuits against DFC and Angela in California.
The trial court found that Vivien’s “purported breach of obligations under the ‘Principle of Equality,’ an agreement allegedly made in Hong Kong in 2003 among residents of Hong Kong” was an insufficient basis upon which to exercise personal jurisdiction over Vivien. The court concluded that “California has little interest in21

adj udicating” a dispute among Hong Kong residents involving “allege[d] tortious conduct carried out in Hong Kong, regarding disputed assets that were gifted to ANGELA CHEN in Hong Kong, though in some part consisting of real property interests located here.” DFC fails to show that the trial court’s findings and conclusions are factually or legally unsupported. The evidence showed that the “principle of equality” agreement was made in Hong Kong , and that it concerned the division of Chen’s assets, some which included
California real estate allegedly gifted to Angela. Vivien’s alleged promises confirming Chen’s gifts of California real property assets to Angela were also made in Hong Kong. That Vivien’s alleged promises were directed to Angela as well as Chen and in part concerned real property assets located in California, is insufficient to establish personal jurisdiction over Vivien. Most courts, including the California Supreme Court, have held that “merely asserting that a defendant knew or should have k nown that his intentional acts would cause harm in the forum state is not enough to establish personal jurisdiction” based on the “effects” of out

- of

- state conduct in California. ( Pavlovich, supra , 29 Cal.4 th at pp. 270

- 271, 278.) Rather, the plaintiff m ust show that the defendant’s intentional conduct was “ expressly aimed at or targeting the forum state” in addition to the defendant’s knowledge that his or her intentional conduct would cause harm in the forum. ( Id. at pp. 271, 278.) The trial court did not err by concluding that Vivien’s alleged promises confirming Chen’s principle of equality was not a sufficient basis on which to exercise personal jurisdiction over her. The trial court rejected DFC’s argument that Vivien directed Boster and Rostack , as her agents, to file lawsuits in California against Angela and DFC based on evidence
that Vivien neither owns nor controls either of those entities. D eposition testimony by Vivien and by former Boster and Rostack directors Patrick Yu and Gladys Au confi rmed that Vivien does not own or control Boster or Rostack and that she did not direct th ose entities to file the California actions

. The evidence showed that Boster and Rostack are not part of the Nan Fung Group but are owned by Sai Wo , an entity wholly owned by
Chen during his lifetime and now part of Chen’s estate. Although Vivien is one of the22

four executors of Chen’s estate , the evidence showed that Vivien has no control over Boster’s activities and has not participated in any of the executors’ decis ions pertaining to
the Rostack lawsuit against Angela.
I n a letter dated April 16, 2013 , attorneys for the executors informed Angela’s lawyers that “Vivien has not participated in making any decisions pertaining to the
Rostack L awsuit and has abided by th e decisions pertaining to the Rostack Lawsuit made by the other three Executors.” T he letter further stated: “The Executors have satisfied themselves that Rostack has a meritorious claim in the Rostack Lawsuit, had have been advised that they would be in breach of their duty were they to instruct the management
of Rostack t o discontinue the proceedings

. ” With regard to Angela’s claim that the Rostack lawsuit contravenes Chen’s intention to gift the Two Bear Ranch property to her,
the executors stated: “ Mr. Chen could have given effect to his alleged intention to gift the sum concerned to Angela by either procuring Rostack during his lifetime to release the claim or by making some appropriate provision for this purpose in his will, but he did
neither

. [¶ ] [U]nder Hong Kong law, an intention to make a gift is, if that gift is not perfected, unenforceable, and the Executors have been advised that they have no power to perfect on Mr. Chen’s behalf a gift which for whatever reason Mr. Chen did not perfect
in his lifetime himself or make provision for its perfection in his will. We understand the position is the same under California law. Hence, evidence concerning Mr. Chen’s intentions has no bearing on the Executors’ consideration of the matter.” Substant ial evidence supports the trial court’s findings that Vivien did not purposefully avail herself of forum benefits by controlling or directing Boster or Rostack to file lawsuits in
California. 2. Alleged legal error

a. The trial court did not require DFC to prove the existence of an agency relationship DFC contends the trial court’s ruling is based on the erroneous legal theory that DFC was required to prove the existence of an agency relationship between Vivien, on the one hand, and Boster and Rosta ck, on the other, in order to imput e Boster and23

Rostack’s jurisdictional contacts to Vivien

. To the extent the trial court’s ruling refers to an agency relationship, it does so simply to address an argument DFC itself advanced in opposing the motion to qu ash

-- that Vivien “directed Boster and Rostack, as her agents, to engage in wrongful conduct in California.” The trial court did not, in any event, require DFC to prove an agency relationship. Rather, the trial court concluded that DFC failed to prove p urposeful availment because there was no evidence that Vivien
controlled Boster or Rostack or that she directed t hem to file suit in California.
DFC cites Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462 ( Burger King ) for the principle that forum contac ts “‘ carried on in behalf of ’” a nonresident defendant can be attributed to the defendant, and that the trial court was required to impute Boster’s and Rostack’s forum contacts to Vivien regardless of whether she controlled or directed their
actions. ( Id. at p. 479, fn. 22.) The principle articulated by the Supreme Court in Burger King is nowhere n ear as broad. That principle, in its entirety states : “We have previously noted that when commercial activities are ‘carried on in behalf of’ an out

- of

- state party those activities may sometimes be ascribed to the party, [citation], at least where he is a ‘primary [ participant]’ in the enterprise and has acted purposefully in directing those
activities , [citation]. ” ( Ibid. ) The same principle was applied by t he trial court in the
instant case when it specifically found that Vivien does not participate in the management or control of Boster or Rostack, and that she did not direct the ir forum

- related activities. DFC’s reliance on Anglo Irish Bank Corp., PLC v. Superior Court (2008) 165 Cal.App.4 th 969, Empire Steel Corp. v. Superior Court of Los Angeles County (1961) 56 Cal.2d 823, and HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4 th 1160 as support for its argument for imputing Boster’s and Rostack ’s forum contact s to Vivien is similarly misplaced. The courts in those cases imputed c ontacts to a nonresident corporation because the corporation purposefully caused or directed the forum

- related activities . ( Empire Steel, supra , at p. 831 [ specific pe rsonal jurisdiction over foreign parent corporation established based on parent’s “manipulation” and control of its California subsidiary]; HealthMarkets, supra , at p. 1169 [“parent company purposefully avails itself of forum benefits through the activitie s of its subsidiary

. . . if and only if the24

parent deliberately directs the subsidiary’s activities in, or having a substantial connection with, the forum state”]; see also Anglo Irish Bank, supra , at p. 983 [proper jurisdictional question is “whether the defendant has purposefully directed its activities at the forum state by causing a separate person or entity to engage in forum con tacts”].) In the instant case, the trial court specifically found that Vivien does not control Boster or Rostack, and
that she did not direct their forum

- related activities. As discussed, substantial ev idence supports those findings.

b. The trial court did not improperly raise the burden of proof DFC next contends the trial court improperly raised DFC’s burden of proof b y requiring DFC to disprove alternate theories as to who was directing Boster’s and Rostack’s forum

- related activities. DFC argues that the trial court ignored evidence that Boster and Rostack were shell entities controlled by Vivien and applied its own

a lternative “thesis” that Boster’s and Rostack’s actions are being prosecuted at the direction of the executors of Chen’s estate. The record shows that the trial court’s ruling was based on the evidence presented, not on an alternative legal “thesis” not p ropounded by the parties. In its written order, the trial court discusses this evidence in some detail, including a letter from the executors of Chen’s estate and a declaration by Chen’s court

- appointed conservator stating that the
Rostack and Boster acti ons were undertaken wit h their approval. DFC ignores this
substantial evidence and cites other ev idence that contradicts the trial court ’ s factual findings. Under the applicable standard of review , however, w e must view the evidence in the light most fav orable to the prevailing party, and resolve neither credibility issues nor evidentiary conflicts. ( Hope v. California Youth Authority (2005) 134 Cal.App.4 th 577, 589.)
T he record also shows that the trial court considered th e evidence presented , not for the purpose of improperly increasing DFC’s burden of proof, b ut to address a “purposeful availment” theory that DFC itself advanced: “DFC’s ‘purposeful availment’ argument asserts that Mr. Chen would not have authorized Boster’s (and Rostack’s)
actions a gainst entities that he gifted to his elder daughter because that would violate the25

Principle of Equality Agreement

. . . and that, therefore, VIVIEN CHEN

. . . must be directing these two Los Angeles actions to deprive ANGELA CHEN of her rights under
that Agreement. This thesis presumes that no person other than VIVIEN CHEN would challenge the decisions that ANGELA CHEN belies are implied under the Principle of Equality Agreement. That is not the case.”

c. The trial court did not apply an incorrect l egal standard DFC contends the trial court applied the wrong legal standard when it concluded that the “gravamen” of DFC’s cross

- action against Vivien does not “arise from” forum

related activities but from breach of the principle of equality a greement. Citing Vons,

supra , 14 Cal.4 th 434, DFC argues that the proper legal standard for the exercise of specific jurisdiction is not whether a claim “arise[s] directly from th e defendant’s forum

contacts ” but rather, whether it “bears a substantial connection to the nonresident’s forum contacts.” ( Id. at p. 452.) DFC maintains there is no requirement that the “gravamen” of a cause of action arise from forum contacts, and that “the trial court’s legally erroneous test set the jurisdictional bar far too high.”
T he trial court’s factual determination that the gravamen of the claims asserted against Vivien do not arise from forum

- related activities did not result from the court’s application of an incorrect legal standard. In the sentence immediately preceding tha t factual determination, the trial court articulated the correct standard as follows: “With respect to the requirement that DFC’s causes of action against VIVIEN CHEN arise from her activities in California, DFC fails to show that its claims arise from VI VIEN CHEN’S
forum

- related activities.” That statement is consistent with the second prong of the applicable three

- part test for a court’s exercise of personal jurisdiction

-- whether the controversy is related to or “ arises out of ” the defe ndant’s contact s with the forum. ( Epic Communications, supra , 179 Cal.App.4 th at p. 327.) DFC has failed to establish any legal error. 3. Jurisdiction would be unreasonable
DFC claims the trial court improperly shifted the burden of proof as to whether exercising p ersonal jurisdiction over Vivien in California would be unreasonable when26

the court stated that “DFC fail[ed] to meet its burden to show

. . . that the exercise of jurisdiction over VIVEN CHEN by this Court would be unreasonable.” Under the applicable leg al standard, the plaintiff bears the initial burden of proving, by a preponderance of the evidence, the factual basis justifying the exercise of personal jurisdiction over the defendant. If the plaintiff does so, the burden then shifts to the
defendant to demonstrate that the exercise of jurisdiction would be unreasonable. ( Pavlovich, supra , 29 Cal.4 th at p 273.) The trial court’s statement regarding the burden of proving that the exercise of personal jurisdiction over Vivien would be unreasonable
was th erefore incorrect. The error, if any, however, was harmless, because the trial court
found that DFC had not met its burden of proving any factual basis justifying the exercise of personal jurisdiction over Vivien. The burden accordingly never shifted to Vivien to show that the exercise of jurisdiction would be unreasonable. ( Ibid. ) DISPOSITION The order granting Vivien’s motion to quash is affirmed. The order denying Boster’s anti

- SLAPP motion is reversed, and the matter is remanded to the trial court to determine whether DFC can establish a probability of prevailing on its claims. The parties will bear their respective costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

____________________________, J. CHAVEZ

We concur:

__________________________, P. J. BOREN

__________________________, J. ASHMANN

- GERST