Filed 9/11/15 Boster Assocs. v. Dynamic Finance Corp. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 

Appellant,

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 Superior 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 Barondess, 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 

425.161special 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 reverse the order 

denying the anti-SLAPP motion and remand the matter to the trial court to determine 

whether DFC has demonstrated a probability of prevailing on the merits of its crossclaims against Boster.

BACKGROUND

Parties

Boster is a British Virgin Islands corporation and a wholly owned subsidiary of 

Sai Wo Enterprises Limited (Sai Wo), a Hong Kong corporation 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 Holding 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 2003. 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 participation 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 

agreement (participation agreement) pursuant to which Boster purchased a 99 percent

interest in the $18 million Rancho California 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 funded 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 could 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 crosscomplaint 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 contractual and fiduciary duties 

owed to Angela by seeking to misappropriate assets that Chen had gifted to Angela. The 
4

cross-complaint further alleged that Boster and Vivien were agents, alter egos, and coconspirators of each other, and that Boster participated 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 was 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 relationship 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. dollars) 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 nonU.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 petitioned 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, and 
5

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, Vivien 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, 

departments, 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 is Vivien’s agent and alter ego.

Anti-SLAPP Motion

Boster filed an anti-SLAPP motion on October 30, 2012, arguing that the 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 motion and joined 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 acquired 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 antiSLAPP motion, and the trial court granted that request, allowing written discovery and 

depositions of Vivien and of Boster’s current and former directors.

After discovery was concluded, DFC filed its opposition to the 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 principle 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 California 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 to Angela were 

consistent with the principle 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 Angela 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 confirm 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 Chairman 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, Vivien 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 declaration, 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 entities 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 states 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 transactions involved self-dealing and secret 

profiteering by Vivien, or diversion of corporate opportunities to companies owned or 

controlled by her.

DFC submitted deposition testimony by Grace Au and Patrick Yu, Boster’s sole 

directors at the time instant action was commenced. Au and Yu both testified that they 

were appointed 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. Vivien 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 either Boster or Rostack; that 
8

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 evidence 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 matter 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 representing 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 Boster pursue its claim against DFC and 

to leave matters in the hands of Boster’s directors, management and legal advisors.”

The trial court denied Boster’s anti-SLAPP motion, concluding that the claims 

asserted in DFC’s cross-complaint do not arise from the 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 crosscomplaint arise.”

The trial court found that “Boster is not 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 transaction. 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 (before 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 demurrer 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 Fung. 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 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 by Boster 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 California, 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 briefs addressing the issue 

of whether 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 

motion to quash.

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 order 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 the 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 against 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 Kong among residents of Hong Kong.

The trial court concluded that California has little 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, the trial court did 

not address Vivien’s alternative motion to stay or dismiss the action based on forum 

non conveniens.

The instant appeal

Boster appeals 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 two 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 petition 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 provides: “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 court 

determines that the plaintiff has established that there is a probability that the plaintiff 

will prevail on the claim.”
11

Determining whether section 425.16 bars a given cause of action requires a twostep 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 any 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 “probability 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 demonstrate 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 (2003) 31 Cal.4th 728, 741, fn. omitted.)

A trial court’s order granting a special motion to 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 protected activity

Boster contends all of the claims asserted against it in the cross-complaint arise 

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 constitutional 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 filing litigation or otherwise seeking 
12

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 to 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 stating 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.4th 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.4th 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.4th at p. 92.) A court considering an anti-SLAPP 

motion must therefore examine the allegedly wrongful conduct itself, without particular 

heed to 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 duty 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 liability 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 Boster and 

DHC/DFC”; (2) “Boster, through directors Patrick Yu and Gladys Au, knew about this 

relationship 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 the evidence submitted in opposition to the antiSLAPP 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 is “seeking 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 allegation of any activity by Boster, nor was there evidence of any activity

by Boster except seeking to enforce the participation agreement 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 intentionally 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 promises, 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 causes 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 improperly conflated Boster’s protected activity with unprotected alleged 

misconduct by Vivien. “[A] plaintiff cannot frustrate the purposes of the SLAPP statute 

through a pleading tactic of combining allegations of protected and nonprotected activity 

under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc. v. Paladino 

(2001) 89 Cal.App.4th 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 agent, 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 identity 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 findings. (See Mesler v. Bragg Management Co. (1985) 39 

Cal.3d 290, 300 [two general requirements 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 follow’”].) 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. There was no valid legal basis for attributing Vivien’s 

alleged 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.4th 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 determine 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 contends Vivien made a general appearance by filing a joinder to Boster’s 

anti-SLAPP motion and that the trial court misconstrued section 418.10, subdivision (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 jurisdiction 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.’ [Citations.]” (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 motion 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 who 

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, 

250.)

Section 418.10 provides an important exception to the foregoing jurisdictional 

principles. As relevant here, section 418.10, subdivision (e) allows a defendant or crossdefendant 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 language of 

the statute, 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 case 

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; Roy 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 1014, 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 ‘act’ that amounts to an appearance under section 1014 is 

‘fact specific.’” (Air Machine, at 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 

legislative 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 antiSLAPP 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 itself 

of the statutory safe harbor. It argues that 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 of her jurisdictional objections.

DFC’s argument was expressly rejected by the court in Air Machine. In 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 subdivision (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 although 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 have 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 

response to the complaint without 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 complaint.’]; Assem. Com. on Judiciary Analysis of Sen. Bill No. 1325 

(2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 4 [same].)” (Air Machine, supra, 

186 Cal.App.4th at pp. 421-422.) We find the court’s reasoning in Air Machine to be 

persuasive and apply it here. Vivien’s joinder in Boster’s anti-SLAPP motion, filed after 
18

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 personal 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 jurisdiction 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 defendant 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 to 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 litigating 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 the 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.4th 1080, 

1090.) “Under the minimum contacts test, ‘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.’ [Citations.]” (Pavlovich v. 

Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich).) To the extent this determination 

depends 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.4th 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.4th at p. 

446.) “Specific jurisdiction exists when, though the defendant lacks 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, Inc. (2009) 179 Cal.App.4th 314, 

327 (Epic Communications).) DFC does not challenge the trial court’s ruling that it has 

no general jurisdiction over Vivien. We are therefore concerned only with the 

sufficiency of Vivien’s contacts to establish specific jurisdiction.

“‘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] defendant’s contacts 

with the forum’” [citations]; and (3) “‘the assertion of personal jurisdiction would 
20

comport with “fair play and substantial justice”’” [citation].’ [Citation.]” (Epic 

Communications, supra, 179 Cal.App.4th at p. 327.)

When a nonresident 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.4th 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.4th 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 California 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.4th 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: in 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 Vivien 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 in 
21

adjudicating” 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 known 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.4th at pp. 270-271, 278.) Rather, the plaintiff must 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. Deposition testimony by 

Vivien and by former Boster and Rostack directors Patrick Yu and Gladys Au confirmed 

that Vivien does not own or control Boster or Rostack and that she did not direct those 

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 the 
22

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’ decisions pertaining to 

the Rostack lawsuit against Angela.

In 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 Lawsuit and has abided by the decisions pertaining to the Rostack Lawsuit made 

by the other three Executors.” The 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 to 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.” Substantial 

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 Rostack, on the other, in order to impute Boster and 
23

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 quash -- 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 purposeful availment because there was no evidence that Vivien 

controlled Boster or Rostack or that she directed them to file suit in California.

DFC cites Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462 (Burger King) for

the principle that forum contacts “‘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 near 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 the 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 their forum-related activities.

DFC’s reliance on Anglo Irish Bank Corp., PLC v. Superior Court (2008) 165 

Cal.App.4th 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.4th 1160 as 

support for its argument for imputing Boster’s and Rostack’s forum contacts to Vivien is 

similarly misplaced. The courts in those cases imputed contacts to a nonresident 

corporation because the corporation purposefully caused or directed the forum-related 

activities. (Empire Steel, supra, at p. 831 [specific personal 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 activities of its subsidiary . . . if and only if the 
24

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 contacts”].) 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 evidence 

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 by 

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 

alternative “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 propounded 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 actions were undertaken with their approval. DFC ignores this 

substantial evidence and cites other evidence that contradicts the trial court’s factual 

findings. Under the applicable standard of review, however, we must view the evidence 

in the light most favorable to the prevailing party, and resolve neither credibility issues 

nor evidentiary conflicts. (Hope v. California Youth Authority (2005) 134 Cal.App.4th

577, 589.)

The record also shows that the trial court considered the evidence presented, not 

for the purpose of improperly increasing DFC’s burden of proof, but 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 against entities that he gifted to his elder daughter because that would violate the 
25

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 legal 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” forumrelated activities but from breach of the principle of equality agreement. Citing Vons, 

supra, 14 Cal.4th 434, DFC argues that the proper legal standard for the exercise of 

specific jurisdiction is not whether a claim “arise[s] directly from the 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.”

The 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 that 

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 VIVIEN 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 defendant’s contacts with the forum. (Epic 

Communications, supra, 179 Cal.App.4th 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 personal jurisdiction over Vivien in California would be unreasonable when 
26

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 legal 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.4th 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 therefore 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