Filed 7/21/15 CERIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PAUL W. MONCRIEF et al

.,

Cross

- Complainants and Appellants,

v.

A

. JAMES CLARK et al

.,

Cross

- Defendants and Respondents. H04009 8 ( Monterey County Super. Ct. No. M116031)

Appellant is Paul W

. Moncrief , et al. (Moncrief) , a California attorney , and

r espondent is A. James Clark , et al. (Clark) , an Arizona attorney

. Moncrief was sued for legal malpractice arising from a failed purchase of farm

equipment. In response, Moncrief cross

- claimed against Clark, the attorney who

represented the farm equipment company, for misrepresentations he made in connection

with the purchase.

Moncrief is appealing the trial court‟s gra nt of Clark‟s motion to quash service of

summons and complaint for lack of personal jurisdiction.

S TATEMENT OF THE F ACTS A ND C ASE

Andrew Smith Company ( Smith) is a California general partnership. In

January 2010, Smith hired Moncrief to perform due dilig ence in connection with Smith‟s

purchase of farm equipment from Texas Hill Farms, locate d in Yuma, Arizona. Texas

Hill Farms was represented by Clark, an Arizona attorney.2

As part of his due diligence, Moncrief performed a Uniform Commercial Code

s earch regarding Texas Hill Farms‟ ownership of the equipment that was the subject of

the sale. In addition, while he was in California, Moncrief called Clark in Arizona to

discuss the ownership of the equipment, and left a voicemail for Clark.

On January 27, 2010, Smith informed Texas Hill Farms that it was ready to

finalize the sale but was “waiting [ for Moncrief] to receive a call from [Clark] to confirm

various title and ownership issues.”

Clark called Moncrief in response to the earlier voicemail M oncrief had left for

Clark and at the request of his client, Texas Hill Farms. During the phone call between

Clark and Moncrief, Clark represented that Texas Hill Farms was the sole owner of the

farm equipment that was the subject of the sale.

Followin g the telephone conversation between Moncrief and Clark, Clark sent

Moncrief an e

- mail that stated in part: “I have been the attorney for Texas Hill Farms

. . . and can state unequivocally that the cooling equipment you are buying is free and clear

and is owned by Texas Hill Farms, a partnership.”

Based on Clark‟s representations during the phone conversation with Moncrief,

and Clarks‟ email, Moncrief advised Smith to go forward with the equipment purchas e

from Texas Hill Farms.

In 2011, Smith learned that Texas Hill Farms did not own the equipment when

they completed the sale transaction. In actuality, New York Community Bank had

acquired an interest in the equipment.

As a result of the failed farm equipment purchase, Smith sued Moncrief for legal

malpractice. Moncrief cross

- complained against Clark for e quitable indemnity

, negligence, intentional misrepresentation, negligent misrepresentation, and concealment

.

M oncrief alleged that Clark‟s representation about the ownership of the farm equipment

was false, and was made to induce Moncrief‟s client to pu rchase the equipment.3

Clark filed a motion to quash service of summons in response to Moncrief‟s cross

complaint , arguing that California lacked personal jurisdiction over him

. The court

granted t he motion, stating “Clark did not purposefully avail himself to Forum benefits.

He did not reach out to Moncrief

. . . . There‟s no evidence that he targeted Moncrief or

California or anything. So whether Moncrief

. . . is based in California or anywhere else,

it had no bearing on the information he sought from Clark. It seems just such a random

attenuated and insufficient contact to establish specific jurisdiction.”

This appeal followed.

D ISCUSSION

Moncrief asserts the trial court erred in granting Clark‟s motion to quash service

of summons , because Clark personally directed activities toward California, Moncrief‟s

claims arise out of Clark‟s contacts with California, and it would be fair and reasonable

for California to exercise personal jurisdicti on over Clark

. “On a motion to quash for lack of person al jurisdiction, the plaintiff bears the

burden of establishing by a prep onderance of the evidence that the defendant has such

“ „minimum contact s‟ ” with the forum state that being subjected to its jurisdiction will

not offend traditional notions of fair play. [Citation.]” ( E pic Communications, Inc. v.

Richwave Technology (2009) 179 Cal.App.4th 314, 326 ( Epic Communications ) .) “ To

the extent this question turns on issues of fact, it is entrusted to the trial court, whose

resoluti on of those issues will not be disturbed if supported by substantial evidence. ”

( Ibid , citing Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449

( Vons ) .) “Insofar as the question presents issues of la w, such as the jur isdictional

sufficiency of the contacts impliedly or necessarily found by the trial court, it will be

subject to independent review on appeal. [Citations.]” ( Ibid .)

California‟s long

- arm statute, Code of Civil Procedure section 410.1 0, provides

that “[a] court of this state may exercise jurisdiction on any basis not inconsistent with4

the Constitution of this state or of the United States.” The California Supreme Court has

instructed that “[a] state court‟s assertion of personal juris diction 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 jur isdiction does not violate

„ “ traditional notions of fair play and substantial justice.” ‟ [Citations.]” ( Vons , supra, 14

Cal.4 th at p p. 444

- 445 ( Vons ), quoting International Shoe Co. v. Washington , supra, 326

U.S. 310, 316.)

“Under the minimum contac ts test, „an esse ntial 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. Su perior Court

(2002) 29 Cal.4th 262, 268 ( Pav lovich ), quoting International Shoe Co. v. Washington

(1945) 326 U. S. 310, 316

- 317, 319.)

“ Specific jurisdiction exists when, t hough the defendant lacks such pervasive

forum contacts that he may be treated as present for all purposes, it i s nonetheless proper

to su bject him to the forum state‟s jurisdiction in connection with a particular

controversy. ” ( Epic Communications, supra , 179 Cal.App.4th at p. 327.) “When

determining whether specific jurisdiction exists, courts consider the „ “ re lationship

among the defendant, the forum, and the litigation.” ‟ [ Citations.] A court may exercise

specific j urisdiction over a nonresident defendant only if: (1) „the defendant has

p urposefully availed himself or herself of forum benefits‟ [citation]; (2) „ the “controversy

is related to or „arises out of‟ [the] defendant‟s contac ts with the forum” ‟ [citations ]; and

(3) „ “the assertion of personal j urisdiction would comport with „fair play and substantial

justice‟ ” ‟ [c itations].” ( Pavlovich, supra

, 29 Cal.4th at p. 269.)

The plaintiff “ „has the initial burden of demonstrating facts justifying the exercise

of jurisdiction.‟ [Citation.] If the plaintiff meets this initial burden, then the defendant5

has the burden of demonstrating „that exercise of jurisdiction would be unreasona ble.‟

[Citation.]” ( Pavlovich, supra , 29 Cal.4th at p. 273.)

Purposeful Availment

P urposeful availment of forum benefits

— “ „is only satisfied when the defendant

purposefully a nd voluntarily directs his [or her] activitie s toward the forum so that he [or

she] should expect, by virtue of the benefit he [or she] receives, to be subject to the

cour t‟s jurisdiction based on‟ his [or her] con tacts with the forum. [Citation .]”

( Pavlovich

, supra , 29 Cal.4th at p. 269.)

Citing Hall v. LaRonde (1997) 56 Cal.App.4th 1342, Moncrief asserts that Clark

purposefully availed himself of the benefits of California when he communicated via

telephone and e

- mail with Moncrief for the purpose of facilitating the farm equipment

sale for his Arizona clients. Specifically, Moncrief points to the fact that Clark called

Moncrief to assure him that Clark‟s client, Texas Hill Farms

, owned the equipment that

was the subject of the sale. In addition, following the phone conversation, Clark sent an

e

- mail to Moncrief with written assurances of the ownership with the intent of facilitating

the sale between Moncrief‟s client and Clark‟s clie nt. Moncrief argues that Clarks‟s

contacts with California were for the specific purpose of inducing the complet ion of the

equipment sale. As such, Clark purposefully availed himself of the benefits of the forum

to support California‟s exercise of personal jurisdiction over Clark.

Clark argues that because he only engaged in a single, fortuitous transaction with

M oncrief, he did not personally avail himself of the benefits of California. Clark cites

Shisler v. Sanfer Sports Cars, Inc . (2006) 146 Cal.App.4th 1254 ( Shisler ) , in which this

court found that a single transaction between a Florida car dealer and a Calif ornia

consumer through the car dealer‟s W eb site was not sufficient to establish personal

jurisdiction. ( Id . at pp. 1261

- 1262.) Of particular importance to this court in Shisler was

the fact that while the Florida car dealer operated a passive W eb site t hat was available to6

residents in California, the dealer did not target California for its sales. ( Ibid .) This court

found that the lack of targeting of California residents meant that the car dealer did not

avail itself of t he benefits of California. ( Ibid .)

The facts of this case are distinguishable from those in Shisler . Here, while

Moncrief and Cla rk engaged in a single transaction , Clark targeted Moncrief with the

specific purpose of inducing Moncrief‟s client to finalize the purchase of farm e quipment

from Texas Hill Farms. Clark‟s contacts with California are not akin to maintaining a

passive website available to California residents as the defendant did in Shisler

.
We find that Moncrief has established that Clark purposely availed hi mself of the

benefits of C alifornia such that California can exercise personal jurisdiction over Clark

. Clark‟s representation s were made with the sole purpose of facilitating the sale between

Moncrief‟s California clients and Clark‟s Arizona client. Cla rk‟s communications with

Moncrief were purposely and voluntarily directed toward California “ „ so that he should

expect, by vi rtue of the benefit he receive[d] , to be subject to the court‟s jur isdiction

based on‟ his contacts with the forum. [Citation.]” ( Pavlovich

, supra , 29 Cal.4t h at

p. 269.)

Relatedness

Relatedness concerns “whether the controversy is related to or arises out of

defendants‟ contacts with California.” ( Snowney v. Harrah’s Entertainment, Inc. (2005)

35 Cal.4th 1054, 1067 ( Snowney ) .) The relatedness requirement is determined under the

“ „ substantial connection ‟ test,” which “is satisfied if „there is a substantial nexus or

connection between the defendant‟s forum activities and the plaintiff‟s claim.‟

[Citation.]” ( Id . at p. 1068.)

The California Supreme Court has clarified that under the substantial connection

test, “ „the intensity of forum contacts and the connection of the claim to those contacts

are inversely related.‟ [Citation.] „[T]he more wide ranging the defendant‟s for um7

contacts, the more readily is shown a connection between the forum contacts and the

claim.‟ [Citation.] Thus, „[a] claim need not arise directly from the defendant‟s forum

contacts in order to be sufficiently related to the contact to warrant the exer cise of

specific jurisdiction.‟ [Citation.] . . . Indeed, „ “ „[o]nly when the operative facts of the

controversy are not related to the defendant‟s contact with the state can it be said that the

cause of action does not arise from that [contact].‟ ” ‟ [ Citations.]” ( Snowney, supra

,

35 Cal.4th at p. 1068.)

The substantial connection test is satisfied in this case because the

“ „ “ „ “ operative facts of the controv ersy ” ‟ ” ‟ ” ( Snowney, supra , 35 Cal. 4th at

p. 1068)

, are whether Clark misrepresented in formation about the farm equipment when

he spoke to Moncrief. Moncrief‟s claims in his cross

- complaint against Clark arise from

Clarks‟ contacts with California. Accordingly, we find that the “ „ substantial connection ‟

test” is s atisfied because “ „there is a substantial nexus or connection ‟ ” betwe en Clark‟s

forum

- related activities and Moncreif‟s claims in his cross

- complaint. ( Ibid .)

Fairness

If a defendant has purposely availed himself of the benefits of the forum state, and

the controversy is relat ed to the defendant‟s contacts with the forum, the defendant will

be subject to specific jurisdiction if it would be fair. ( See, e.g., Snowney, supra , 35

Cal.4th at p. 1070.) “In making this determination, the „court “must consider the burden

on the defe ndant, the interes ts of the forum State, and the plaintiff‟s interest in obtaining

rel ief. It must also weigh in its determination „the interstate judicial syst em‟s interest in

obtaining the most efficient resolution of the controversi es; and the shared i nterest of the

several states in further ing fundamental su bstantive social policies.‟ ” ‟ [Citations.]”

( Ibid .) However, where a defendant who “ „purposefully has directed [his or her]

activities at f

orum residents seeks to defeat jurisdiction, [he or s he] must present a8

com pelling case that the presence of some other considerations would rende r jurisdiction

unreasonable.‟ [ Citation.]” ( Ibid .)

We find that Clark has not presented “ „ a compelling case ‟ ” that considerations

other than the fact of thei r out

- of

- state residency would render California jurisdiction

unr easonable. ( Snowney

, supra , 35 Cal.4th at p. 1070.) Indeed, the only issue Clark

addr esses in his brief is personal availment; he makes no argument regarding the

relatedness or fairness ele ments of personal jurisdiction. Accordingly, we deem the issue

waived. ( I

nterinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [the

absence of argument allows this court to treat the point as waived].)

We find that the trial court erred in granting Clark‟s motion to quash service of

summons. We find nothing in the record to support the trial court‟s finding that the

contact was “just such a random attenuated and insufficient contact to establish specific

jurisdiction.” Conversely, it is undisputed that Clark‟s conduct and his intentional

misrepresentations were required to close the sale. Clark personally availed himself of

the benefits of California when he reached into California to induce Moncrief‟s client to

complete the equipment p urchase. In addition, Moncrief‟s claims arise out of Clark‟s

contacts with California. Finally, Clark has not demonstrated that “ „exercise of

jurisdiction would be unreasonable.‟ [Citation.]” ( Pavlovich, supra , 29 Cal.4th at

p. 273.)

D ISPOSITION

The order is reversed

.9 ______________________________________

RUSHING , P. J.

WE CONCUR:

____________________________________

ELIA, J

.

____________________________________

MÁRQUEZ, J.10

Trial Court: Monterey County Superior Court Superior Court No.: M116031

Trial Judge: The Honorable Kay T. Kingsley

Attorneys for Cross

- Complaints and Hoge , Fenton, Jones & Appel, Inc. Appellants Paul W. Moncrief et al.:
Alison P. Buchanan Crystal N. Riggins

Attorneys for Cross

- Defendants and Manning & Kass, Ellrod, Ramirez, Respondents A. James Clark et al.: Trester

Michael L. Smith Patrick L. Hurley