Filed 3/21/22 Stalnaker v. Cupp CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHN STALNAKER, JR.,

Plaintiff and Appellant,

v.

CAROLE L. CUPP,

Defendant and Respondent.

 D078684

 (Super. Ct. No. 37-2020-

00022289-PR-TR-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Jeffrey S. Bostwick, Judge. Affirmed.

Craig J. Leff for Plaintiff and Appellant.

Finlayson Toffer Roosevelt & Lilly and Jesse S. Finlayson for 

Defendant and Respondent.

I

INTRODUCTION

Trust beneficiary John Stalnaker, Jr. (John Jr.) appeals an order 

granting a motion to quash service of his petition for a trust accounting and

discharge/surcharge of trustee Carole Cupp (Carole). The trial court
2

determined it did not have personal jurisdiction over Carole, an 83-year old 

resident of Tennessee. We agree with the trial court. Therefore, we affirm 

the challenged order. 

II

BACKGROUND

A

In 1981, husband John Stalnaker, Sr. (John Sr.) and wife Mary 

Stalnaker (Mary) executed a revocable living trust in San Diego. They 

amended the living trust from time to time, most recently in 1992. 

As amended, the living trust provided for the creation of two sub-trusts

upon the death of the first spouse—(1) a revocable survivor’s trust consisting 

of the surviving spouse’s separate property and community property 

interests, and (2) an irrevocable maximum credit trust consisting of the 

deceased spouse’s separate property and community property interests. 

John Sr. and Mary were designated as the initial co-trustees of the living 

trust, and John Jr. (John Sr.’s son and Mary’s step-son) and Carole (Mary’s 

sister) were named as successor co-trustees, effective upon the death of the 

first spouse. John Jr. was a beneficiary of the maximum credit trust (in the 

event John Sr. predeceased Mary), and a contingent remainder beneficiary of 

the survivor’s trust and the maximum credit trust. 

In 2000, John Sr. died in San Diego County. 

In 2001, Mary moved to Tennessee where her sister Carole resided. In 

2009, Mary died in Tennessee. She left Carole all of her property in her will. 

Carole served as the executor of Mary’s estate, which was probated in 

Tennessee. 
3

B

In March 2020, John Jr. served Carole with a demand letter requesting 

an accounting of all assets held in the maximum credit trust. 

A few months later, John Jr. filed a petition in San Diego Superior 

Court requesting an accounting of the living trust and its sub-trusts, removal 

of Carole as trustee, and a trustee surcharge for alleged misappropriation of 

trust assets and breach of fiduciary duty. The petition alleged Mary (during 

her lifetime) and Carole had misappropriated assets held in the maximum 

credit trust without his consent as co-trustee and in violation of the trust’s 

distribution terms. 

Carole filed a motion to quash service of the petition for lack of 

personal jurisdiction. She asserted California courts did not have general 

jurisdiction over her because she was a Tennessee resident, she did not own 

property in California, and she had not been to California in nearly twenty 

years. She argued California courts lacked specific jurisdiction over her as 

well because she did not purposefully avail herself of the state’s benefits, 

John Jr.’s claims did not arise out of her alleged contacts with the forum 

state, and the exercise of jurisdiction would be unreasonable. In particular, 

she claimed: (1) she never agreed to act as co-trustee, (2) she never 

administered the trust in California (or elsewhere), (3) any alleged 

misconduct occurred in Tennessee where she served as the executor of Mary’s 

estate, and (4) the exercise of jurisdiction in California would be unfair given 

her Tennessee residency, her advanced age (83 years old), and the fact Mary’s 

estate was probated in Tennessee. 

In a declaration attached to the motion to quash, Carole averred she 

was unaware she was a co-trustee of any trust until she received John Jr.’s 

demand letter, and she did not knowingly exercise any powers as a co-trustee 
4

under any trust. Further, she averred she performed all activities related to 

the probate of Mary’s estate in Tennessee. 

John Jr. opposed the motion to quash and claimed the court had

specific jurisdiction over Carole. He argued she purposefully availed herself 

of California’s benefits based on three contacts she allegedly had with Jack 

Kaufman, a San Diego-based attorney who prepared the living trust and its

amendments. John Jr. filed a declaration from Kaufman describing his 

alleged contacts with Carole. 

According to John Jr. and Kaufman, the contacts were as follows:

First, on or about July 15, 2003, Carole, Mary, and Kaufman had a 

conference call during which they discussed an amendment to the trustee 

designations for the survivor’s trust. In the words of Kaufman, the

amendment changed the “trustee from John Stalnaker to [Mary’s] sister,” 

which we will presume is a reference to Carole. 

Second, on or about July 16, 2003, Carole sent Kaufman a letter asking 

him for a copy of the trust amendment just discussed, so that Carole could 

“perform [her] duties as co-trustee” of the survivor’s trust. 

Third, on or about July 29, 2003, Carole sent Kaufman a letter stating 

Mary wanted further amendments to the survivor’s trust. The letter stated 

Mary wanted to designate two co-trustees (Carole and Barry Cupp, whose 

relationship to the sisters is not apparent from the record) and a successor cotrustee (Cheryl Thompson, whose relationship to the sisters is not apparent

from the record either), because “Mary prefer[red] to have two co-trustees 

and one successor co-trustee.”1

1 Before the trial court, John Jr. argued that Carole purposefully availed 

herself of California’s benefits, in part, because Kaufman allegedly sent 

certain trust-related letters from California to Carole in Tennessee. John Jr. 

does not repeat these arguments on appeal.
5

John Jr. argued Carole’s contacts with Kaufman allowed her to “carry 

out her co trustee [sic] duties in administering the trust in question,” and, 

therefore, John Jr.’s claims arose out of her forum-related contacts. He

asserted the exercise of jurisdiction would be reasonable as well, given that 

John Sr. and Mary were California residents, they executed the living trust 

in California, the living trust had a California governing law provision, and 

most of the witnesses and documents were in San Diego County.

Carole filed a reply in support of her motion to quash. She disputed the 

authenticity of the letters filed with John Jr.’s opposition and asserted they 

did not, in any event, evince a purposeful availment of California’s benefits. 

Carole also argued the petition did not arise out of her alleged contacts with 

Kaufman because those contacts concerned the survivor’s trust and John Jr.’s

claims were based on Carole’s alleged misappropriation of assets from the 

maximum credit trust. Finally, Carole argued the exercise of jurisdiction 

would be unreasonable for many of the same reasons previously discussed. 

Together with the reply, Carole filed a declaration averring she did not 

recall sending the letters referenced in John Jr.’s opposition and she knew 

nothing about them. She averred she did not knowingly exercise any power 

as trustee and, to the best of her recollection, she was not involved in Mary’s 

financial affairs until she was appointed executor of her estate. 

After a hearing, the trial court granted Carole’s motion to quash. It

noted there were “several issues with [the] credibility of the evidence.” It 

found, on the one hand, that Carole’s statements disclaiming knowledge of 

the trust were “directly contradicted by Mr. Kaufman’s declaration and the 

documents attached thereto.” It noted, on the other hand, that Kaufman had 

been “disciplined by the California State Bar on numerous occasions, which 

call[ed] into question his credibility.” The court declined to resolve these 
6

credibility issues and instead found John Jr.’s evidence, assuming it was 

credible, was insufficient to justify the exercise of jurisdiction over Carole.2

In particular, the court found John Jr. failed to establish that Carole 

purposefully availed herself of California’s benefits. The court reasoned that 

Carole “only ask[ed] for documentation relating to the Trust” during her 

contacts with Kaufman, and there was “no attorney-client relationship 

between [Carole] and Mr. Kaufman.” The court found Mary and Carole were 

both in Tennessee during the alleged contacts; therefore, “to the extent that 

[Carole] and Mary were cotrustees or individual trustees during this time, 

the principal place of administration of the Trust would have been in 

Tennessee.” According to the court, Carole and Mary were located in 

Tennessee when Mary died and when Carole administered Mary’s estate; 

“again, the principal place of administration would have been in Tennessee.” 

Further, John Jr. claimed he only recently found out about the trust; 

therefore, “there [was] no way he could have been administering the trust in 

California ....” Finally, the court found there was no evidence that Carole 

held or administered any property in California. 

For all these reasons, the court found John Jr. failed to meet his burden 

of proving purposeful availment. The court quashed service of the petition

without deciding whether the lawsuit arose from Carole’s contacts with 

California, or whether the exercise of jurisdiction would be reasonable. 

2 In his opening brief, John Jr. repeatedly states that the trial court 

“found Kaufman’s declaration to be credible.” These statements are untrue.

The trial court openly questioned Kaufman’s reliability and explicitly 

declined to make any credibility findings.
7

III

DISCUSSION

A

General Legal Principles

“California’s long-arm statute authorizes California courts to exercise 

jurisdiction on any basis not inconsistent with the Constitution of the United 

States or the Constitution of California. (Code Civ. Proc., § 410.10.) A state 

court’s assertion of personal jurisdiction over a nonresident defendant who 

has not been served with process within the state comports with the 

requirements of the due process clause of the federal Constitution if the 

defendant has such minimum contacts with the state that the assertion of 

jurisdiction does not violate ‘ “traditional notions of fair play and substantial 

justice.” ’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 

434, 444–445, quoting International Shoe Co. v. Washington (1945) 326 U.S. 

310, 316.) 

When a court makes a minimum contacts determination, “ ‘an essential 

criterion in all cases is whether the “quality and nature” of the defendant’s 

activity is such that it is “reasonable” and “fair” to require him to conduct his 

defense in that State.’ ” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 

268.) Minimum contacts determinations are fact-specific and “ ‘few answers 

will be written “in black and white. The greys are dominant and even among 

them the shades are innumerable.” ’ ” (Ibid.)

Personal jurisdiction may either be general or specific for purposes of 

the minimum contacts inquiry. (Snowney v. Harrah’s Entertainment, Inc.

(2005) 35 Cal.4th 1054, 1062.) “ ‘For an individual, the paradigm forum for 

the exercise of general jurisdiction is the individual’s domicile; for a 

corporation, it is an equivalent place, one in which the corporation is fairly 
8

regarded as at home.’ [Citation.] A court with general jurisdiction may hear 

any claim against that defendant, even if all the incidents underlying the 

claim occurred in a different State.” (Bristol-Meyers Squibb Co. v. Superior 

Court (2017) 137 S.Ct. 1773, 1780 (Bristol-Meyers).) John Jr. does not claim 

general jurisdiction. Therefore, we focus solely on whether the exercise of 

specific jurisdiction over Carole would comport with due process.

“In order for a state court to exercise specific jurisdiction, ‘the suit’

must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’ 

[Citations.] In other words, there must be ‘an affiliation between the forum 

and the underlying controversy, principally, [an] activity or an occurrence 

that takes place in the forum State and is therefore subject to the State’s 

regulation.’ [Citation.] For this reason, ‘specific jurisdiction is confined to 

adjudication of issues deriving from, or connected with, the very controversy 

that establishes jurisdiction.’ ” (Bristol-Meyers, supra, 137 S.Ct. at p. 1780.)

Courts may exercise specific jurisdiction over a nonresident defendant 

who has not been served with process within the forum state—which in this 

case is California—when three requirements are met. “First, the defendant 

must have purposefully availed himself of the privilege of conducting 

activities in this state, thereby invoking the benefits and protections of 

California’s laws. Second, the claim or controversy must relate to or arise out 

of the defendant’s forum-related contacts. Third, the exercise of jurisdiction 

must be fair and reasonable and should not offend notions of fair play and 

substantial justice.” (Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 392.) 

When an out-of-state defendant moves to quash service for lack of 

personal jurisdiction, the plaintiff seeking to hail the defendant into court 

“bears the initial burden of establishing the first two elements by a 

preponderance of the evidence, and if the plaintiff does so, the out-of-state 
9

defendant then bears the burden of convincing the court why the exertion of 

personal jurisdiction would not comport with fair play and substantial 

justice.” (Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243, 

253 (Jacqueline B.).) To carry its initial burden, “[t]he plaintiff must do more 

than merely allege jurisdictional facts. It must present evidence sufficient to 

justify a finding that [the forum state] may properly exercise jurisdiction over 

the defendant. [Citation.] The plaintiff must provide affidavits and other 

authenticated documents in order to demonstrate competent evidence of 

jurisdictional facts. ... Declarations cannot be mere vague assertions of 

ultimate facts, but must offer specific evidentiary facts permitting a court to 

form an independent conclusion on the issue of jurisdiction.” (In re 

Automobile Cases I & II (2005) 135 Cal.App.4th 100, 110.)

“In reviewing a trial court’s dismissal for lack of personal jurisdiction, 

we independently review the court’s legal rulings and its application of the 

law to its factual findings [citations], but review those factual findings only 

for substantial evidence [citation].” (Jacqueline B., supra, 68 Cal.App.5th at 

p. 251.) 

B

John Jr. Failed to Establish Purposeful Availment

John Jr. argues that Carole purposefully availed herself of California’s

benefits due to the three alleged contacts she had with Kaufman, a San 

Diego-based attorney, nearly two decades ago. According to John Jr., the 

purposeful availment element was satisfied because Carole obtained “legal 

advise [sic] and assistance” during her alleged contacts with Kaufman. 

Alternatively, John Jr. claims Carole “secur[ed] the legal keys to assume 

control of both sub trusts” during these contacts. Even if we assume the 
10

disputed contacts occurred, they fall short of establishing that Carole 

purposefully availed herself of California’s benefits.

With respect to John Jr.’s first argument, John Jr. failed to present the 

trial court with any evidence that Carole ever secured, or attempted to 

secure, legal assistance through her alleged contacts with Kaufman. Rather, 

as the trial court correctly found, the alleged “correspondence and telephone 

call regarding amending the Trust indicate that Mary was [Kaufman’s]

client.” (Italics added.) Indeed, all three alleged contacts concerned 

amendments to the survivor’s trust—a sub-trust established by John Sr. and 

Mary. Further, John Jr. elicited no other competent evidence to support the 

existence of an attorney-client relationship between Kaufman and Carole.

With respect to John Jr.’s second argument, John Jr. failed to introduce 

any evidence that Carole initiated the contacts at issue to obtain “the legal 

keys” necessary for her to control the sub-trust underlying John Jr.’s petition. 

His petition alleged misappropriation of assets from just one of the two subtrusts created by the living trust–the maximum credit trust. However, all 

three of Carole’s alleged contacts with Kaufman concerned the other subtrust created by the living trust—the survivor’s trust. Thus, Carole’s alleged

contacts with Kaufman had nothing to do with the trustee designations, or 

the “control” provisions, of the sub-trust that is the focus of John Jr.’s 

petition.

Even if the contacts at issue had pertained to the correct sub-trust, the 

trial court still would not have erred in granting the motion to quash. In the 

trial court, John Jr. vaguely argued that Carole and Mary “participated in 

[the] telephone conference with Kaufman ... to carry out certain changes in 

the trust ....” Using similarly ambiguous language, Kaufman averred in his 

declaration that he had a “telephone conference with [Carole] and Mary....” 
11

However, John Jr. presented no evidence that Carole—as opposed to Mary or 

Kaufman himself—initiated this supposed telephone conference. Further, 

John Jr. presented no evidence of the role that Carole played, if any, during 

the purported telephone conference. Thus, Carole may have acted as a mere 

passive recipient of a call planned, instigated, and led by Kaufman and/or 

Mary. Given this possibility, we cannot infer from the mere existence of a

telephone conference that Carole aimed her conduct at California. (See 

Farina v. SAVWCL III, LLC (2020) 50 Cal.App.5th 286, 296 [“The actions of 

third parties ... generally are irrelevant to whether defendants ... 

purposefully availed themselves of a forum’s benefits.”] (Farina).)

The letters allegedly sent by Carole to Kaufman did not demonstrate 

purposeful availment either. In the letter dated July 16, 2003, Carole simply 

asked Kaufman for documentation of a trust amendment that had already 

been made. The letter dated July 29, 2003 merely conveyed a request from 

Mary asking for additional amendments to the survivor’s trust. Carole had 

already been named co-trustee by the time she conveyed this request, which 

did not grant her any greater or additional authority than she already had. 

In short, John Jr.’s evidence did not establish that Carole sent the alleged 

correspondence to secure control over any of the trusts referenced herein. 

Additionally, there are many other facts suggesting Carole did not 

purposefully direct her activities to California. As the trial court found,

Carole resided in Tennessee and Mary moved to Tennessee shortly after 

John Sr.’s death; thus, “to the extent that [Carole] and Mary were cotrustees 

or individual trustees during this time, the principal place of administration 

of the Trust would have been in Tennessee.” As the trial court also found, 

and as both parties appear to agree, Carole served as executor of Mary’s 

estate from Tennessee, and Mary’s estate was probated in Tennessee. 
12

Further, there is no indication in the record, and John Jr. does not argue, 

that any trust property was ever held or administered in California.

Finally, John Sr. and Mary’s actions, standing alone, do not establish 

purposeful availment. John Sr. and Mary lived in California, executed the 

living trust in California, and included a California choice of law provision in 

the trust. But, “[o]nly when a defendant purposefully directs a third party’s 

activities toward the forum state can the actions of the third party be 

imputed to the defendant. [Citation.] Thus, even when a third party is 

involved, the focus of our inquiry remains on the defendant’s actions and 

intent.” (Farina, supra, 50 Cal.App.5th at p. 296; accord Burger King Corp. v. 

Rudzewicz (1985) 471 U.S. 462, 475 [the “ ‘purposeful availment’ requirement 

ensures that a defendant will not be haled into a jurisdiction solely as a 

result ... of the ‘unilateral activity of another party or a third person’ ”].) 

There is no indication in the record, and no argument made, that 

Carole directed or controlled John Sr. and Mary’s actions. Thus, John Sr. and 

Mary’s residence in California, their execution of the trust in California, and 

their inclusion of a California choice of law provision do not establish that 

nonresident Carole directed her activities to California. (See Hanson v. 

Denckla (1958) 357 U.S. 235, 254 [“It is urged that because the settlor and 

most of the appointees and beneficiaries were domiciled in [the forum state]

the courts of that [s]tate should be able to exercise personal jurisdiction over 

the nonresident trustees. This is a nonsequitur. ... [Personal jurisdiction] is 

resolved in this case by considering the acts of the trustee.”].)
13

Because John Jr. failed to establish purposeful availment, we affirm 

the order granting Carole’s motion to quash service of the petition.3

IV

DISPOSITION

The order quashing service of the petition is affirmed. Respondent 

Carole Cupp is entitled to her appellate costs.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

3 On appeal, John Jr. argues substantial evidence did not support the 

challenged order because Carole’s declaration was “obviously false [and] not 

worthy of belief ....” We need not address this argument because John Jr. 

has not identified any particular factual findings lacking sufficient 

evidentiary support. (Doe v. Roman Catholic Archbishop of Cashel & Emly 

(2009) 177 Cal.App.4th 209, 218 [appellant waived substantial evidence 

challenge to order quashing service of summons by failing to discuss 

challenged findings]; Shenouda v. Veterinary Medical Bd. (2018) 27 

Cal.App.5th 500, 515 [appellant waived substantial evidence challenge by 

failing to address trial court’s findings or explain why the evidence did not 

support the findings].) Further, we need not address the argument because 

John Jr.’s evidence, standing alone, was insufficient to satisfy the purposeful 

availment requirement.