Opinion
B321036
12-09-2022
BRUNA PALOMBO, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ALEXANDRA ZARINI, Real Party in Interest.
Glaser Weil Fink Howard Avchen &Shapiro, Julie R.F. Gerchik, Elizabeth G. Chilton, Cynthia E. Organ, and Olivia M. Weiss for Petitioner. No appearance for Respondent. Greenberg Gross, Alan Greenberg, Deborah S. Mallgrave and Claire-Lise Y. Kutlay for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Superior Court of Los Angeles County, No. 20STCV34041 Steven J. Kleifield, Judge. Petition granted.
Glaser Weil Fink Howard Avchen &Shapiro, Julie R.F. Gerchik, Elizabeth G. Chilton, Cynthia E. Organ, and Olivia M. Weiss for Petitioner.
No appearance for Respondent.
Greenberg Gross, Alan Greenberg, Deborah S. Mallgrave and Claire-Lise Y. Kutlay for Real Party in Interest.
SEGAL, ACTING P. J.
INTRODUCTION
Alexandra Zarini brought an action against her former stepfather Joseph Ruffalo, her mother Patricia Gucci, and her grandmother Bruna Palombo for damages arising from Ruffalo's alleged sexual abuse of Zarini when she was a child living in California. Palombo, a resident of Italy, moved to quash service of summons for lack of personal jurisdiction. The trial court denied the motion, and Palombo filed a petition for writ of mandate in this court. We issued an order to show cause and now grant the petition because Zarini did not submit evidence her causes of action arise from or relate to Palombo's contacts with California.
FACTUAL AND PROCEDURAL BACKGROUND
A. Zarini Files an Action Against Palombo in California
In approximately 1992, when Zarini was six years old, Zarini and Gucci moved to Beverly Hills, where they lived with Gucci's boyfriend and eventual husband, Ruffalo. Soon after, Ruffalo allegedly began sexually assaulting Zarini and continued to assault her for the next six years, until Gucci and Zarini moved to London. Although Ruffalo did not move with Gucci and Zarini, he visited them in London, where, Zarini alleged, Ruffalo's sexual assaults continued. Gucci and Ruffalo divorced in 2008.
In September 2020 Zarini filed an unverified complaint in Los Angeles County Superior Court against Ruffalo, Gucci, and Palombo. Zarini alleged Gucci "sexualized" Zarini for Ruffalo's benefit by forcing her to pose naked for a large portrait Gucci kept in the bedroom she shared with Ruffalo, allowing Ruffalo to watch and record Zarini taking a bath, asking Zarini to deliver breakfast in bed to Gucci and Ruffalo when Ruffalo was naked, and commenting on Zarini's developing body in front of Ruffalo. Zarini also alleged her mother physically and verbally abused her, after which Ruffalo would "rescue" Zarini from her mother and take advantage of the circumstances to sexually assault her. More broadly, Zarini alleged Gucci's "years of ongoing mental and physical abuse, . . . coupled with her manipulative behavior," made Zarini "more vulnerable" to Ruffalo's sexual assaults.
Zarini alleged Palombo resided in Italy but "made regular trips to see the family in California." Zarini alleged that, after Palombo had observed Gucci's and Ruffalo's "abusive interactions" with Zarini for "many years," Palombo approached Zarini when she was approximately 16 years old (and no longer living in California) and asked Zarini if Ruffalo "had touched her inappropriately." Zarini confirmed to her grandmother that Ruffalo had sexually abused her. Zarini alleged Palombo instructed Zarini not to tell anyone about the abuse. Zarini further alleged that, after an incident involving Ruffalo when Zarini was 22 years old and living in England, Zarini told Palombo she was going to report Ruffalo to the police, and Palombo threatened to "cut [Zarini] out of the family forever, both monetarily and emotionally."
Zarini alleged causes of action against Palombo for negligence, sexual battery, intentional infliction of emotional distress, and gender violence. Regarding her cause of action for negligence, Zarini alleged that Palombo owed Zarini a duty of care as one of her "de facto caregivers" and that Palombo breached that duty by "disregarding [Zarini's] emotional and physical safety." Specifically, Zarini alleged that Palombo's "conduct, actions, and omissions served to create an environment in which [Ruffalo] was afforded years of continuous secluded access to [Zarini]" and that Palombo knew or should have known of Ruffalo's "sexually abusive and exploitative propensities, and/or that he was . . . unfit to exercise reasonable care, supervision, and protection of [Zarini]." Zarini further alleged Palombo failed to protect Zarini from Ruffalo and allowed him "to come into contact" with her without adequate supervision, ignored or otherwise failed to act on her knowledge of the sexual assaults, and failed to inform or concealed from law enforcement that Ruffalo had sexually assaulted Zarini.
Regarding her cause of action for sexual battery, Zarini alleged Palombo "ratified and authorized [Ruffalo's] sexual assault . . . by failing to properly act on [her] knowledge of the sexual assaults," failing to protect Zarini "from continued criminal sexual assaults," failing to report Ruffalo's conduct to law enforcement, and "actively shielding" Ruffalo from responsibility for his actions. Regarding her cause of action for intentional infliction of emotional distress, Zarini alleged Palombo "intended to cause [Zarini] emotional distress and/or acted with reckless disregard of the probability that [Zarini] would suffer emotional distress, knowing that [Zarini] was sexually assaulted for years." Finally, regarding the cause of action for gender violence, Zarini alleged Palombo aided and abetted Ruffalo's sexual assaults by knowingly or recklessly disregarding Ruffalo's "sexual proclivity for young females," fostering and facilitating the environment "Ruffalo needed to sexually violate [Zarini]," and "conspiring "to sexually violate [Zarini]."
B. Palombo Moves To Quash Service of Summons for Lack of Personal Jurisdiction
In April 2021 Palombo moved to quash service of summons under Code of Civil Procedure section 418.10 for lack of personal jurisdiction. Palombo stated in her supporting declaration she resides in Rome, Italy and has never resided in California. Palombo also stated that from 1992 to 1998, when Zarini and Gucci lived in California, she visited her family no more than eight times, usually during holidays. Palombo said she first learned of Ruffalo's alleged sexual assaults after Zarini disclosed them to her mother in a London doctor's office in 2007 when Zarini was 22 years old.
Palombo also argued the proof of service was defective under the Hague Convention. The trial court denied Palombo's motion on this ground, and Palombo does not challenge the court's ruling.
Palombo argued Zarini's action did not arise from Palombo's limited contacts with California because Zarini did not allege Palombo knew about Ruffalo's alleged abuse until Zarini was 16 years old and living in London. Palombo denied knowing about the abuse until Zarini was 22, but stated that, even if Zarini's allegation were true, it showed Palombo did not know about the alleged abuse until after Zarini left California. Palombo also argued that defending an action in California was not fair or reasonable because it would be a "great burden" for her and that neither she, Zarini, nor Gucci currently lived in California.
Zarini argued in opposition to the motion the court had personal jurisdiction over Palombo because Palombo was "physically present in California during the time period [Zarini] was sexually assaulted." Zarini argued her action arose out of or related to Palombo's contacts with California because Palombo, while in California, fostered an environment permitting, failed to protect Zarini from, and covered up Ruffalo's alleged sexual assaults. Zarini also argued Palombo's "contacts bear a substantial connection to [her] claims because while present in California, [Palombo] knew, or should have known, of Ruffalo's assaults and created a hostile environment that facilitated the assaults. [Citation.] These actions occurred at the time Ruffalo sexually assaulted [Zarini], . . . including during Palombo's visits."
In her declaration Zarini restated many (but not all) of the allegations in her complaint. With regard to Palombo and her conduct in California, Zarini stated: "When I lived in California as a child, my grandmother, Bruna Palombo, frequently visited. My grandmother would travel to California and stay in our home, often staying for several weeks at a time. Due to the extended visits, my mother eventually built guesthouses for my grandmother to use on her visits. My mother built guesthouses for her properties in Beverly Hills and Palm Desert. During these visits, I developed a close relationship with my grandmother and viewed her as a second motherly figure. My grandmother saw how my mother treated me and would often provide comfort or guidance. When my grandmother was not in California, she kept in regular contact through telephone calls."
Zarini further stated: "When my grandmother was in California, she and my mother would get into frequent, almost daily, arguments. These arguments would often become screaming matches and were very scary to witness as a young child. In fact, sometimes my mother would take her anger or frustration out on me and start yelling at me or hitting me. Ruffalo would use these arguments between my mother and grandmother as an excuse to 'rescue' me and then he would sexually assault me. [¶] . . . When my grandmother visited us in California she would routinely get medical procedures done, including a facelift and the after care."
The trial court continued the hearing on the motion to quash to allow Zarini to take discovery on the jurisdiction issue. Zarini served written discovery on Palombo, but did not seek to take her deposition. In response to an interrogatory asking Palombo to identify all dates she was in California from January 1, 1992 to December 31, 1998, Palombo stated that, to the best of her recollection, she travelled to California no more than eight times during that time period. She said each visit occurred around Christmas or Easter and lasted approximately one month. Palombo provided copies of pages from her passport showing entry stamps into Los Angeles on four dates between 1992 and 1998. In response to another interrogatory, Palombo stated she did not learn about any allegations regarding Ruffalo's sexual misconduct with respect to Zarini until September 2007, when Zarini was 22 years old.
In a supplemental opposition to Palombo's motion, Zarini argued, "Just as the exercise of personal jurisdiction is proper over a non-resident tourist who causes a traffic collision while in California on vacation, so too is personal jurisdiction proper over Palombo based on her tortious conduct during her extended repeat visits to California." Zarini relied on a the recent decision of Doe v. Damron (2021) 70 Cal.App.5th 684 (Damron), where the court stated: "When a defendant commits a tort in the forum state, the defendant has established a sufficient connection with the state to satisfy due process." (Id. at p. 691, fn. 1.) Zarini argued Palombo committed a tort in California because she knew or should have known of Ruffalo's "repeated sexual assaults of Zarini in California, as the result of her regular visits to California at which times the sexual assaults occurred and red flags of the assaults were present."
To support this argument, Zarini pointed to her complaint, in which she alleged that Palombo observed Gucci's and Ruffalo's "'abusive interactions'" with Zarini and that Zarini developed compulsive bathing and hair-pulling. Zarini also relied on the statement in her declaration that Ruffalo took advantage of Palombo and Gucci's "screaming matches" to comfort Zarini before sexually assaulting her. Zarini argued those "stark red flags of abuse . . . should have triggered any responsible adult in Zarini's life to inquire further."
Zarini did not allege Palombo observed Zarini's compulsive bathing and hair-pulling. Zarini alleged only that she developed these behaviors as a result of Ruffalo's alleged sexual abuse and that Gucci (not Palombo) "either ignored or teased [Zarini] about her obsessive compulsive behaviors."
In a supplemental reply brief, Palombo argued Zarini did not carry her burden of producing evidence Palombo had sufficient contacts with California. Specifically, Palombo argued Zarini improperly relied on unverified allegations in her complaint rather than admissible evidence to show Palombo committed an "affirmative act" in California. Palombo contended evidence of failing to act was not sufficient to establish the requisite contacts with California that would support personal jurisdiction. Palombo also repeated her argument that forcing her to defend herself in California state court when she resides in Italy would be unfair and unreasonable.
C. The Trial Court Denies the Motion To Quash, and Palombo Files a Petition for Writ of Mandate
The trial court (a different judge) denied the motion. Citing Damron, supra, 70 Cal.App.5th 684, the trial court stated: "If you just analogize this case to somebody who comes here from Italy visiting and rents a car and drives it and hits somebody, and they get sued for the personal injuries, they've availed themselves of the laws of the State of California while they're here. And they committed a tort and there would be personal jurisdiction." The court also stated that, although "[n]o affirmative act for a commission of a tort is required for the actual basis of jurisdiction," Palombo did commit an affirmative act by her "presence in the State."
Palombo timely filed a petition for writ of mandate or prohibition, seeking an order directing the trial court to grant her motion to quash service of summons for lack of personal jurisdiction. We issued an order to show cause.
DISCUSSION
A. Applicable Law and Standard of Review
"When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the burden of proving, by a preponderance of the evidence, facts justifying the exercise of jurisdiction." (Dongxiao Yue v. Wenbin Yang (2021) 62 Cal.App.5th 539, 546; see Snowney v. Harrah 's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney); Bader v. Avon Products, Inc. (2020) 55 Cal.App.5th 186, 192-193.) "The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint." (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210; see Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 393; Dongxiao Yue, at p. 546.) "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 Antitrust Cases I &II (2005) 135 Cal.App.4th 100, 110; see Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1454 ["declarations consisting primarily of vague assertions of ultimate fact rather than specific evidentiary facts are not sufficient"].) If the plaintiff meets his or her burden, "'"it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable."'" (Dongxiao Yue, at p. 546; see Snowney, at p. 1062; ViaView, at p. 210.)
"State courts may assert personal jurisdiction over nonresident defendants served with process only if those defendants have sufficient 'minimum contacts' with the state to ensure that the assertion of jurisdiction does not violate 'traditional notions of fair play and substantial justice.'" (SK Trading International Co. Ltd. v. Superior Court of San Francisco County (2022) 77 Cal.App.5th 378, 386 (SK Trading); see Snowney, supra, 35 Cal.4th at p. 1061.) "'Minimum contacts' may support either general (also called 'all-purpose') jurisdiction or specific (also called 'case-linked') jurisdiction. [Citations.] '"[W]here the defendant's contacts with the forum state are so 'systematic and so continuous as to make it consistent with traditional notions of fair play and substantial justice to subject the defendant to the jurisdiction of the forum, even where the cause of action is unrelated to the contacts,'"' then the exercise of general jurisdiction is proper. [Citation.] '"Specific jurisdiction results when the defendant's contacts with the forum state, though not enough to subject the defendant to the general jurisdiction of the forum, are sufficient to subject the defendant to suit in the forum on a cause of action related to or arising out of those contacts."'" (SK Trading, at p. 386; see Walden v. Fiore (2014) 571 U.S. 277, 283, fn. 6; Rivelli v. Hemm, supra, 67 Cal.App.5th at pp. 391-392 .) Zarini does not contend California has general jurisdiction over Palombo; she argues only that Palombo's contacts with California are sufficient to support specific jurisdiction.
"Specific jurisdiction exists where (1) the defendant has purposefully availed itself of a forum's benefits; (2) the controversy relates to or arises out of the defendant's contacts with the forum; and (3) the exercise of jurisdiction comports with fair play and substantial justice." (Bader v. Avon Products, Inc., supra, 55 Cal.App.5th 186, 193; see Snowney, supra, 35 Cal.4th at p. 1062; SK Trading, supra, 77 Cal.App.5th at p. 387.) In general, "the minimum contacts test asks '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.' [Citation.] The test 'is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite "affiliating circumstances" are present.'" (Snowney, at p. 1061; see Rivelli v. Hemm, supra, 67 Cal.App.5th at p. 392 ["[t]he case-linked jurisdictional analysis is intensely fact-specific"].)
Where the defendant is a citizen of a foreign country and resides outside the United States, "'we apply jurisdictional principles with an abundance of caution.'" (Rivelli v. Hemm, supra, 67 Cal.App.5th at p. 393; see F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795.) Courts must exercise "'"[g]reat care and reserve . . . when extending our notions of personal jurisdiction into the international field.'" [Citation.] This principle requires 'a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State.'" (Rivelli, at p. 393; see Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 115 ["[t]he procedural and substantive interests of other nations in a state court's assertion of jurisdiction" and "the Federal interest in Government's foreign relations policies" are best served by a "careful inquiry" in cases involving foreign defendants].)
"'"On review, the question of jurisdiction is, in essence, one of law. When the facts giving rise to jurisdiction are conflicting, the trial court's factual determinations are reviewed for substantial evidence. [Citation.] Even then, we review independently the trial court's conclusions as to the legal significance of the facts. [Citations.] When the jurisdictional facts are not in dispute, the question of whether the defendant is subject to personal jurisdiction is purely a legal question that we review de novo."'" (SK Trading, supra, 77 Cal.App.5th at p. 387; see ViaView, Inc. v. Retzlaff, supra, 1 Cal.App.5th at p. 210.)
B. Zarini Failed To Submit Competent Evidence To Justify the Exercise of Personal Jurisdiction
Palombo argues Zarini failed to carry her burden to prove any one of the three elements of the minimum contacts test. We conclude that, even if Zarini met her burden on the first element, purposeful availment, and on the third element, fairness, she did not submit sufficient evidence her causes of action arise out of or relate to Palombo's contacts in California.
The second element of the minimum contacts test, relatedness, requires that the plaintiff's claims "'arise out of or relate to the defendant's contacts' with the forum." (Ford Motor Co. v. Montana Eighth Judicial Dist. Court (2021) ___U.S.___, ___, 141 S.Ct. 1017, 1025; see SK Trading, supra, 77 Cal.App.5th at p. 389.) In other words, "for a court to exercise specific jurisdiction over a claim, 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.' [Citation.] When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State." (Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. (2017) 582 U.S.___, ___ ___, 137 S.Ct. 1773, 1781] (Bristol-Myers).) A "defendant's contacts with the forum State may be intertwined with [his or her] interactions with the plaintiff or other parties. But a defendant's relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction." (Walden v. Fiore, supra, 571 U.S. at p. 286; see Bristol-Myers, at p. 1781.) And "when intentional torts are involved," a "forum State's exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum." (Walden, at p. 286.)
Palombo argues we should apply the "'substantial nexus'" test for relatedness described in Snowney, supra, 35 Cal.4th at p. 1068 and Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 453, which requires a "'substantial nexus or connection between the defendant's forum activities and the plaintiff's claim.'" (Rivelli v. Hemm, supra, 67 Cal.App.5th at p. 400.) The United States Supreme Court in Bristol-Myers, however, cast doubt on the validity of the California Supreme Court's formulation of the second element of the minimum contacts test. (See Bristol-Myers, supra, 137 S.Ct. at pp. 17801781.) Therefore, we apply the United States Supreme Court's formulation of the relatedness element, which asks if the plaintiff's claims "arise out of or relate to" the defendant's contacts with the forum. (Ibid; see Rivelli, at p. 399; SK Trading, supra, 77 Cal.App.5th at p. 389, fn. 3.)
Zarini asserted four causes of action against Palombo, one for negligence and three for intentional torts. Zarini alleged and submitted competent evidence Palombo was in California when Ruffalo allegedly assaulted her. But Zarini submitted no evidence that Palombo knew or should have known about the alleged abuse or that Palombo committed any tortious misconduct in California. The only evidence Zarini submitted connecting Palombo's conduct to Ruffalo's alleged assaults was the statement in her declaration that "Ruffalo would use . . . arguments between my mother and grandmother as an excuse to 'rescue' [Zarini] and then he would sexually assault [her]." But that statement does not implicate any conduct by Palombo constituting a tort. Zarini did not state in her declaration Palombo knew or should have known Zarini would use Palombo's arguments with her daughter to take advantage of Zarini, nor does it provide any factual predicate for such knowledge.
For example, Zarini alleged that after Palombo had observed Gucci's and Ruffalo's "abusive interactions" with Zarini for "many years," Palombo asked Zarini (in London) if Ruffalo "had touched her inappropriately." Zarini, however, did not state that Palombo observed any "abusive interactions" with Ruffalo; she stated only that Palombo "saw how [Zarini's] mother treated [her]." Zarini also alleged that she "developed an obsession with showering and bathing her body . . . sometimes until the point where her skin became raw and reddened" and that she "developed a compulsive hair pulling disorder" that "led to the development of a visible bald spot on [Zarini's] scalp," but Zarini did not provide any evidence suggesting that Palombo knew or should have known of these conditions. Palombo's mere presence in the house or in a guesthouse on the same property is not sufficient to infer that Palombo knew or should have known Zarini was distressed or that Zarini's distress was the result of sexual abuse by Ruffalo.
Citing Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, Zarini argues that she "need not prove the truth of the underlying allegations giving rise to her injuries" and that she "need only present facts demonstrating that the conduct of [the defendant] related to the pleaded causes is such as to constitute constitutionally cognizable 'minimum contacts.'" (Id. at p. 710.) But Zarini presented no such facts. The only facts in Zarini's declaration (as opposed to allegations in her complaint) were that Palombo visited her family in California during the holidays and that, while there, frequently argued with her daughter. Without more, Zarini's declaration is not evidence of tortious misconduct arising from or relating to Palombo's visits to California.
Zarini also argues she "provided evidence that the nature and extent of Palombo's visits would have allowed Palombo to gain the knowledge necessary to support the allegations in the Complaint." But Zarini cites only statements in her declaration regarding the duration of Palombo's visits to California and her close relationship with her grandmother. Such "vague assertion[s], without more, by an individual privy to" the relevant circumstances are "insufficient to establish the necessary jurisdictional facts by a preponderance of the evidence." (Rivelli v. Hemm, supra, 67 Cal.App.5th at p. 408; see Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1055 ["[d]eclarations are insufficient to support the assertions for which they are offered if they consist primarily of vague assertions of ultimate facts rather than specific evidentiary facts permitting a court to form an independent conclusion on the issue" of personal jurisdiction].) Zarini's allegation Palombo knew or should have known of Ruffalo's alleged assaults "requires 'some evidence' [citation] to connect [Palombo] to the purported misconduct." (Rivelli, at p. 407; see ibid. [plaintiffs failed to meet their burden of showing a foreign businessman's conduct directed at the forum would support the plaintiffs' claim for breach of fiduciary duty]; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233 [plaintiff failed to submit evidence showing "precisely when, where, how or by whom" an alleged oral contract was made that would support personal jurisdiction over a foreign defendant].)
Zarini also suggests she alleged Palombo ignored indicia of abuse, such as Zarini's compulsive bathing and hair-pulling, that would have caused a reasonable person to conduct a further inquiry. But Zarini did not allege Palombo was or should have been aware of signs of Zarini's distress, and even if Zarini had made such an allegation, she did not submit evidence of any such awareness. Similarly, Zarini argues Palombo's "suspicions of Ruffalo's abuse," as evidenced by Palombo's questioning of Zarini when Zarini was 16 years old and living in London (a conversation that Palombo contends did not occur until Zarini was 22 and still in London), meant that "Palombo had plenty of opportunity to form such suspicions based on years of observation, including observations during her lengthy trips to California." But this allegation is neither supported by Zarini's declaration nor sufficient to satisfy Zarini's burden to show her causes of action arise out of or relate to any conduct of Palombo's that occurred in California.
Zarini next argues her unverified complaint has some evidentiary value. Citing Lundgren v. Superior Court (1980) 111 Cal.App.3d 477, Zarini asserts her complaint provides "the necessary context to support a finding of personal jurisdiction." The court in Lundgren did state an unverified complaint "is a material fact" that "defines the cause of action, the nature of which has some bearing upon the decision whether it is fair and reasonable to require the nonresident parties to appear and defend in this state." (Id. at p. 485.) But that is not the same thing as saying an allegation has evidentiary value as a jurisdictional fact. Indeed, in Lundgren, which involved an unverified complaint alleging fraud against nonresident defendants, the parties submitted declarations to support their positions on a motion to quash service of process. (Id. at pp. 481483.) The court in Lundgren relied on the unverified complaint only to determine whether the defendants' contacts in California were related to the causes of action alleged in the complaint. (See id. at pp. 484-485 [analyzing whether "'the quality and nature of [the defendants' activities] in the forum in relation to the particular cause of action'" supported specific jurisdiction].) Nothing in Lundgren suggests the unverified complaint had the same evidentiary value as the declarations that provided competent proof of jurisdictional facts. And any such suggestion would contradict well-settled law a plaintiff must provide competent evidence in the form of declarations or authenticated documentary evidence to prove jurisdictional facts by a preponderance of the evidence. (See SK Trading, supra, 77 Cal.App.5th at p. 390; Rivelli v. Hemm, supra, 67 Cal.App.5th at p. 393; Dongxiao Yue v. Wenbin Yang, supra, 62 Cal.App.5th at p. 546; ViaView, Inc. v. Retzlaff, supra, 1 Cal.App.5th at pp. 209210; In re Automobile Antitrust Cases I &II, supra, 135 Cal.App.4th at p. 110; Paneno v. Centres for Academic Programmes Abroad Ltd., supra, 118 Cal.App.4th at p. 1454; Jewish Defense Organization, Inc. v. Superior Court, supra, 72 Cal.App.4th at pp. 1054-1055; Ziller Electronics Lab GmbH v. Superior Court, supra, 206 Cal.App.3d at pp. 1232-1233; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212.)
Finally, Zarini argues Damron and other cases involving torts committed in California by nonresidents support the exercise of personal jurisdiction over Palombo because Zarini alleged Palombo committed a tort in California. As stated, Zarini did not submit any evidence Palombo engaged in tortious conduct in California. Thus, the circumstances in this case are easily distinguished from those in Damron, where the plaintiff alleged and provided evidence (in the form of a criminal confession) the defendant raped and physically assaulted her in California. (Damron, supra, 70 Cal.App.5th at p. 687.)
The court in Damron recognized that the "classic example" of a court exercising personal jurisdiction over a nonresident who comes to the forum state and commits a tort is "a visitor who negligently causes a car accident." (Damron, supra, 70 Cal.App.5th at p. 691.) Zarini, however, did not (even) allege facts analogous to a negligent car accident in California. Zarini essentially alleged Palombo was in the vicinity of a car accident and may have had the opportunity to see the driver at fault speed through a red light. Those facts (allegations, really) would not support personal jurisdiction in a tort action over a nonresident because the alleged tort did not arise from or relate to the nonresident's conduct. (See id. at p. 691 ["'"[t]here is little doubt that a [defendant] is amenable to state jurisdiction in a tort action even though it has carried on only isolated or sporadic activity within the forum state, so long as the alleged tort grew out of that activity"'"].) Similarly, evidence that Palombo was in the house (or the guesthouse) at the time Ruffalo allegedly assaulted Zarini and that she had the opportunity to become aware of those assaults (or "red flags" suggesting something was amiss) did not suffice to show Zarini's causes of action arise from or relate to Palombo's contacts with California. Because Zarini showed only that Palombo was in California at the time Ruffalo allegedly assaulted Zarini, Zarini did not carry her burden to show any "intentional conduct" by Palombo created the necessary contacts with California. (See Walden v. Fiore, supra, 571 U.S. at p. 286.)
Other cases cited by Zarini in support of her argument Palombo is subject to personal jurisdiction in California because Zarini alleged Palombo committed a tort here are equally distinguishable. (See Hess v. Pawloski (1927) 274 U.S. 352, 356 [personal jurisdiction was proper where a nonresident defendant negligently drove a car and injured the plaintiff in the forum state]; Owens v. Superior Court of Los Angeles County (1959) 52 Cal.2d 822, 830 [personal jurisdiction was proper where a nonresident defendant owned a dog that allegedly bit the plaintiff in California at the time the defendant resided in California].)
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the superior court to vacate its order denying Palombo's motion to quash service of summons and to enter a new order granting the motion. Palombo is to recover her costs in this proceeding.
We concur: FEUER, J. HOWARD, J. [*]
[*] Judge of the Marin County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.