Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 462734
STEIN, Acting P.J.
Cynthia Lea Clark Markowitz (plaintiff) appeals an order granting a motion to quash service filed by Penny Sue Markowitz (defendant), a resident of Florida. Plaintiff also seeks review of an order denying her motion for sanctions against defendant.
We shall affirm the order granting defendant’s motion to quash service on the ground that the court lacked personal jurisdiction over her, and find the court was within its discretion to deny the motion for sanctions.
Facts
On April 25, 2007, plaintiff, the current wife of Richard Markowitz, filed a complaint in San Francisco Superior Court against Richard’s former wife, defendant. The complaint alleges several causes of action based upon a proceeding in the Florida courts that, in February or March 2007, resulted in an order assessing substantial arrearages in alimony payments Richard owed to defendant. Plaintiff alleged that defendant had perjured herself in the Florida court. Plaintiff further alleged that defendant should be “estopped” from collecting alimony because Richard told plaintiff before she married him that the alimony obligation would terminate in August 2000, and defendant unreasonably delayed in asserting her claim. Plaintiff also alleged that defendant’s conduct constituted civil harassment to punish Richard for not reconciling with defendant, and a violation of RICO.
According to the Florida court order, Richard and defendant obtained a judgment of dissolution of marriage in Florida and entered into a property settlement agreement in September 1996. In accordance with the judgment, Richard paid alimony directly to defendant though July 1997. For a period of 36 months, a third party made the alimony payments pursuant to a contract buying Richard’s interest in a business. After July 2000, Richard made no further alimony payments. The Florida court rejected Richard’s contentions that his alimony obligations ended upon termination of the contract with the third party and his suggestion that defendant’s claim should by barred by laches because she waited five years to initiate legal action, and found no evidence to support his assertion that defendant no longer needed alimony or that he was unable to pay.
Plaintiff served summons on defendant in Florida. Defendant responded by filing a motion to quash, on the ground that the court did not have personal jurisdiction. Defendant declared that she was born in Miami, and resides in the State of Florida, where she is also a registered voter. She had lived in Florida for her entire life, except for two years in Washington State, two years in the Philippines, and one year in Maryland. She further declared that she did not reside in California, work in California, or own property in California, and held no bank accounts in this state. She further declared she was not a California resident, was not domiciled in California, and had not been served in California.
Plaintiff opposed the motion to quash, arguing that the court had personal jurisdiction over defendant on various grounds. She also filed a motion seeking sanctions against defendant for failing to serve plaintiff with the motion to quash and to provide plaintiff with copies of the motion, and failing to answer the summons. Plaintiff further contended defendant filed the motion to quash only for the purpose of delay
The court continued the hearing on the motion to quash to give plaintiff more time to respond and file a declaration under penalty of perjury. As factual bases for assertion of personal jurisdiction over defendant, plaintiff declared that defendant had served plaintiff’s husband in California with the Florida alimony lawsuit, and sent records of her expenses to Richard in California. Plaintiff further declared that by obtaining a judgment and income deduction order in Florida, and enforcing it in California, defendant had performed an act outside the state that had an effect within it, including physical effects on plaintiff, friction in plaintiff’s marriage, and financial harm. She further asserted that the alimony order required payments equal to or exceeding 55 percent of Richard’s salary, and therefore encroached upon plaintiff’s share of community property.
Defendant filed a reply declaration reiterating most of the facts she had already stated. The only additional facts were that she paid property taxes and homeowner’s insurance in Florida, and that her marriage and divorce records were in the State of Florida.
After a hearing, the court granted the motion to quash. The court stated that the acts complained of all related to a Florida court decision, and that plaintiff failed to submit admissible evidence that defendant is subject to jurisdiction in California. The court also denied the motion for sanctions. Plaintiff filed a timely notice of appeal, seeking review of both orders.
An order granting a motion to quash is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(3).) The order denying sanctions is not separately appealable, except when it is a postjudgment order. (See Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1122-1123.) The order denying sanctions may, however, be reviewed in the context of the proper appeal of the order granting the motion to quash. (Code Civ. Proc., § 906.)
Analysis
I.
Order Granting Motion to Quash
“In order to obtain personal jurisdiction over a nonresident by service outside this state, it is necessary that the trial court have power to exercise such jurisdiction under section 410.10 of the Code of Civil Procedure which provides: ‘A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.’ ” (Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43 (Judd).) The comment to Code of Civil Procedure section 410.10 lists recognized bases for personal jurisdiction as including: (1) presence; (2) domicile; (3) residence; (4) citizenship; (5) consent; (6) appearance; (7) doing business in the state; (8) doing an act in the state; (9) causing an effect in the state by an act done elsewhere; (10) ownership, use or possession of a thing in this state; and (11) other relationships to the state that make the exercise of jurisdiction reasonable.
“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.] [¶] . . . When the evidence of jurisdictional facts is not in dispute, whether the defendant is subject to personal jurisdiction is a legal question subject to de novo review. [Citation.] When evidence of jurisdiction is in dispute, the trial court’s determination of factual issues is reviewed for substantial evidence.” (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266.)
The evidence was undisputed that defendant was not a resident of California, nor domiciled in this state, nor was she present. Defendant also did not consent to jurisdiction, and she appeared only for the purpose of challenging jurisdiction by filing the motion to quash. Plaintiff presented no evidence that defendant did business in California, or owned any property here. The only facts plaintiff presented as a basis for assertion of personal jurisdiction were that defendant had served plaintiff’s husband in California with the Florida suit for alimony arrearages, had sent records of her expenses to him in accordance with a Florida court order requiring him to pay certain expenses directly, and obtained a judgment and income deduction order in Florida that she enforced on her former husband, who now resides in California.
Plaintiff argues that the foregoing facts support exercising personal jurisdiction over defendant on several bases. First, plaintiff asserts that sending bills to defendant’s former husband for direct payment as required by the Florida court alimony order constitutes doing business in the state. Second, she suggests that initiating the Florida court proceedings to recover past due alimony payments constitutes the commission of an act outside the state that has an effect within the state, because the Florida court order directly impacts plaintiff financially, and the stress has also impacted her health. Third, she asserts that the communications defendant has had with her former spouse by email, mail and telephone concerning matters such as the sale of their former marital home and alimony constitutes the type of relationship to the state that makes the exercise of jurisdiction reasonable.
The basic problem underlying plaintiff’s arguments in support of jurisdiction is that these contacts all relate to the collection of alimony and disposition of marital property, and communications related to these issues, arising out of a marriage and marital dissolution that took place in Florida. In Judd, supra, 60 Cal.App.3d 38, the court rejected the argument that making child support payments, communicating with a former spouse about the care of their children, and even visitation within the state constituted the type of contacts qualifying as acts causing an effect within the state, or otherwise making it reasonable to assert personal jurisdiction over a nonresident father. The court stated: “We find that it would neither be fair to petitioner nor reasonable to hold that this state acquired jurisdiction over him merely because he sent support payments here and communicated with his children and their mother by telephone or mail. Petitioner never resided in California. The original domicile of this family was in New York, and petitioner was not responsible for his former wife and his children moving to California. It should be a matter of strong public policy to encourage the payment of support and communication between a natural father and his children, not to discourage the same by subjecting the father to the expense and inconvenience of relitigating this matter of support in our state.” (Id. at p. 45.) Similar public policy dictates that acts relating to a nonresident former spouse’s enforcement of a Florida judgment of dissolution and alimony order, or communications relating to them, should not subject a nonresident former wife to the jurisdiction of the California courts simply because her former spouse has chosen to reside here. There was no evidence of any other type of contact or relationship between defendant and the State of California. We therefore conclude that the nature and quality of defendant’s contacts with the State of California were insufficient to warrant the assertion of personal jurisdiction over defendant, a resident of Florida, and affirm the order granting the motion to quash.
Plaintiff offered no evidence to dispute defendant’s declaration that her marriage and divorce, and the records relating to them, were in the State of Florida.
II.
Order Denying Sanctions
Plaintiff sought sanctions against defendant on the grounds that the motion to quash was filed only for the purpose of delay. She also contended defendant should be sanctioned for failing to serve plaintiff with the motion to quash and to provide plaintiff with copies of the motion. The court denied the motion without comment, after it granted the motion to quash.
The court was well within its discretion to deny plaintiff’s motion for sanctions. (Muego v. Menocal (1996) 50 Cal.App.4th 868, 873 [grant or denial of sanctions under Code Civ. Proc, § 128.5 is a discretionary act on the part of the trial court].) The fact that the court granted the motion to quash, and that we have affirmed it, demonstrates that the motion to quash was meritorious and not made solely for the purpose of delay. The court also could reasonably conclude that defendant’s initial failure to serve plaintiff with the motion to quash did not warrant imposition of sanctions because plaintiff had actual notice of the motion, and the court continued the hearing to give plaintiff more time to respond.
Conclusion
The judgment is affirmed. Defendant is awarded her costs on appeal.
We concur: SWAGER, J., MARGULIES, J.