III. DISCUSSION 

Plaintiff’s unopposed request for judicial notice is GRANTED.  

BOU raises two challenges to the court’s jurisdiction over BOU.  First, the summons and Plaintiff’s corresponding proof of service are fatally defective because they do not comply with Code of Civil Procedure section 474, and (2) the court lacks general and specific personal jurisdiction over BOU.  The court addresses these arguments in turn. 

BOU argues the summons and corresponding proof of service are defective for two independent reasons: (1) the summons does not contain an endorsement identifying BOU as the entity sued under a fictitious name, as required by Code of Civil Procedure (CCP) section 474; and (2) the proof of service failed to include an attestation that notice of identity was provided to BOU in violation of CCP section 474. The court agrees on both points.  

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.”  (CCP § 474, emphasis added.) 

Here, the summons served on BOU is addressed to “RELIANT LIFE SHARES, LLC, a California limited liability company; and DOES 1-50, inclusive”.  (Watkins Decl., Ex. 3.)  The corresponding proof of service likewise does not notify BOU it is being sued as Doe 7.  (See Proof of Personal Service, filed 7/10/24.)  Plaintiff did not effectuate proper service of the summons.   

Plaintiff does not dispute the foregoing defects.  Instead, he argues CCP section 474 functions only to prevent entry of default or default judgment.  Plaintiff’s position is not supported by case law.  “[Section 474] is not directory but mandatory, and its effect is to deprive the court of the right to proceed against a defendant served with such a defective summons; that is to say, its effect is to make the service of such a defective summons insufficient to give the court jurisdiction over the person of the defendant.”  (Armstrong¿v.¿Superior¿Court¿(1956)¿144¿Cal.App.2d¿420, 424 (Armstrong).)  The point being, a defective summons deprives the court of jurisdiction over a defendant in all respects, including entering default or default judgment against that defendant.  Further, “[a]lthough¿Armstrong¿dealt with a plaintiff's failure to comply with the requirement of proper endorsement of the summons, its reasoning applies as well to a failure to comply with the requirements regarding the recitals to be included in the proof of service.¿Section 474¿provides that the proof of service “must” contain the two recitals. Use of the word “must” establishes that the requirement is mandatory.”  (Pelayo v. J. J. Lee Mgmt. Co. (2009) 174 Cal.App.4th 484, 497.)   

BOU’s challenge to jurisdiction is meritorious on these grounds.  The court lacks jurisdiction over BOU.  Notwithstanding this result, the court proceeds to consider whether general or specific personal jurisdiction exists over BOU.  

BOU argues the court lacks general and specific jurisdiction. 

“The standard for general jurisdiction is considerably more stringent than that for specific jurisdiction.” Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222, 210 (Strasner.) “A state court may exercise general jurisdiction only when a defendant is ‘essentially at home’ in the State. [Citation.] General jurisdiction, as its name implies, extends to ‘any and all claims’ brought against a defendant. [Citation.]¿Those claims need not relate to the forum State or the defendant's activity there; they may concern events and conduct anywhere in the world. But that breadth imposes a correlative limit: Only a select ‘set of affiliations with a forum’ will expose a defendant to such sweeping jurisdiction. [Citation.] In what [the Supreme Court] ha[s] called the ‘paradigm’ case, an individual is subject to general jurisdiction in her place of domicile. [Citation.] And the ‘equivalent’ forums for a corporation are its place of incorporation and principal place of business.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 592 U.S. 351, 358-359 (Ford Motor).)¿¿¿ 

¿ 

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.”¿ (Daimler AG v. Bauman (2014) 571 U.S. 117, 127.)¿ A court may exercise general jurisdiction over an out-of-state corporation only in “exceptional cases.”¿ (Id. at p. 139, fn. 19 [“We do not foreclose the possibility that in an exceptional case, see,¿e.g., Perkins, described¿supra,¿at 755 – 757, and n. 8, a corporation's operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler's activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see¿infra,¿at 763, quite another to expose it to suit on claims having no connection whatever to the forum State.”].)¿ The acts of corporate agents within the forum may establish jurisdiction over the corporation, however “the designation of an agent for service of process and qualification to do business in California alone are insufficient to permit general jurisdiction except for lawsuits arising out of the foreign corporation’s business conducted in the state.” (DVI, Inc. v. Superior Ct. (2002) 104 Cal.App.4th 1080, 1095 (DVI).)¿¿¿ 

¿ 

General jurisdiction is determined no earlier than at the time a suit is filed.¿ (Young v. Daimler AG (2014) 228 Cal.App.4th 855, 864, fn. 6 (Young), citing DVI, 104 Cal.App.4th at p. 1101.)¿ 

Plaintiff has the initial burden to show there are facts justifying the exercise of jurisdiction over BOU.¿ (See Jayone Foods v. Aeykung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.)¿ Plaintiff argues general jurisdiction exists over BOU because “there is substantial evidence that BOU has continuous and substantial contacts with California.”  (Opp., p. 16:2-3.)  In support, Plaintiff submits evidence to show (i) BOU maintains an office in Los Angeles, CA to provide trustee services to Reliant; (ii) BOU has ongoing contractual agreements to provide trustee services to Reliant dating back to 2014; (iii) BOU has used California courts to sue others and/or assert claims; and (iv) BOU issued mortgage loans of at least $708,000 to at least six California customers.  (Steuer Decl., Ex. 1 at pp. 17:15-18:1, 25:6-19; Ex. 2 at § 3.03; Exs. 5, 6, and 11-14.)  

Plaintiff does not meet her initial burden.  First, maintaining one office in the forum is insufficient to establish general jurisdiction.  (See, e.g., Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty. (2017) 582 U.S. 255, 258–59 (finding the operation of five research facilities, maintaining 160 employees, deploying 250 sales representative, and operating a small state-government advocacy office in California as insufficient to establish general jurisdiction).)  One office alone does not establish “continuous and substantial contact” with California.3    

Second, ongoing contractual agreements to provide trustee services and issuing mortgage loans to six California customers is likewise insufficient to establish continuous and substantial contact.  (See, e.g., Luberski, Inc. v. Oleificio F.LLI Amato S.R.L. (2009) 171 Cal.App.4th 409, 414 [finding no general jurisdiction where evidence showed defendant, an Italian company, shipped olive oil to two California buyers over the span of three years].)   

Third, there is no authority to support the proposition that availing the use of California courts in other cases gives rise to general jurisdiction in another matter.    

To be clear, it is undisputed BOU is incorporated in Utah and has its principal place of business in Utah.  (See Schmutz Decl., ¶¶ 2, 3.)  BOU also submits the declaration of its Vice President Trust Manager, Dillon Schmutz, who avers to the following: “Bank of Utah has never (i) had an office or business address in California; (ii) owned or maintained a home, office, facility, or telephone number in California; (iii) held any licenses, permits, or certificates issued by California; (iv) filed a California state income tax return; (v) registered to do business in California with the California Secretary of State, or otherwise; (vi) contributed to – or volunteered in connection with – any California state election; or (vii) received any benefits from the State of California.”  (Schmutz Decl., ¶ 8.)  Further, BOU’s connections are tangential and include (1) holding funds for California-based customers that had sought out Bank of Utah’s services; and issuing small loans within the state of Utah that are collateralized by assets in California.”  (Schmutz Decl., ¶ 9.)  The court does not have general jurisdiction over BOU. 

  “In contrast to general jurisdiction, specific jurisdiction covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name ‘purposeful availment.  For a state to have specific jurisdiction, the defendant must take some act by which it purposefully avails itself of the privilege of conducting activities within the forum State. The contacts must be the defendant's own choice and not random, isolated, or fortuitous.  They must show that the defendant deliberately ‘reached out beyond’ its home—by, for example, exploiting a market in the forum State or entering a contractual relationship centered there.  Yet even then—because the defendant is not ‘at home’—the¿forum State may exercise jurisdiction in only certain cases. The plaintiff's claims must arise out of or relate to the defendant's contacts with the forum.”  (Preciado v. Freightliner Custom Chassis Corporation (2023) 87 Cal.App.5th 964, 978 (cleaned up).)  “Thus, a two-part showing by the plaintiff is required to establish specific jurisdiction: (1) the defendant has ‘purposefully directed’ his activities at residents of the forum, ... and (2) the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.”¿ (Id.)  If the plaintiff satisfies his burden, the burden shifts to the defendant to show the exercise of jurisdiction would be unreasonable, i.e., offend the traditional notions of fair play and substantial justice under the third prong.  (Strasner, supra, 5 Cal.App.5th at p. 226.) 

“The purposeful availment inquiry focuses on the defendant's intentionality. This prong is only satisfied when the defendant purposefully and voluntarily directs its activities toward the forum so that it should expect, by virtue of the benefit it receives, to be subject to the court's jurisdiction based on its contacts with the forum. ¿Thus, purposeful availment occurs where a nonresident defendant purposefully directs its activities at residents of the forum, purposefully derives benefit from its activities in the forum, creates a substantial connection with the forum,  deliberately has engaged in significant activities within the forum,¿or has created continuing obligations between itself and residents of the forum.  (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062-63 (cleaned up).)  

Plaintiff argues BOU has purposefully availed itself of California laws “through its ongoing trustee relationship with Reliant, a California defendant, its communications with Reliant, Reliant’s payment of trustee fees to it, its transmission of investor funds to Reliant and others in accordance with Reliant’s instructions, and the services it provided to Reliant.” (Opp., p. 7:15-19.)  In other words, according to Plaintiff, BOU’s ongoing relationship with Reliant is sufficient to give rise to specific jurisdiction.  

In support, Plaintiff relies heavily on Gilmore Bank v. AsiaTrust New Zealand,Ltd. (2014) 223 Cal. App.4th 1558, 1568 (Gilmore).)  Gilmore is distinguishable.  In¿Gilmore, the nonresident defendant negotiated and executed a contract, conducted due diligence on a California resident, sent promotional materials to a California resident, invoiced a California resident, and transferred funds to and from a California resident. (Id.¿at¿p.¿1572.) The future consequence of these contacts was to create an ongoing “scheme” that would benefit the nonresident defendant for the duration of the California resident's lifetime. (Ibid.) Based on all these factors, the court found the nonresident defendant subject to the court's jurisdiction based on a “ ‘veritable “latticework” of contacts.’ ” (Id.¿at¿p.¿1573.)   

Unlike Gilmore, there is no evidence of BOU sending promotional materials directly to the California resident or otherwise marketing its services to or soliciting business in this forum.  Indeed, BOU provides evidence to the contrary.  (See Schmutz Decl., ¶ 13).  Moreover, to the extent Plaintiff relies on BOU’s contractual relationship with Reliant and other forum residents, the contractual relationship alone is insufficient.  (See Goehring v. Superior Court¿(1998) 62 Cal.App.4th 894, 907 [finding no purposeful availment based solely on the defendants' execution of “sales, security and escrow agreements” with a forum resident].)   

Plaintiff next argues his claims arise out of and relate to BOU’s agreement to serve as trustee for Reliant.  In support, Plaintiff relies on Vons Companies, Inc. v. Seabest Foods, Inc. (1996)14 Cal.4th 434 (Vons) and Integral Development Corp. Weissenbach (2002) 99 Cal.App.4th 576 (Integral Development).  These cases do not change the result.  

In Vons, a case involving ongoing franchise relationships and breach of contract and indemnification claims, the California Supreme Court concluded the state could exercise specific jurisdiction over defendants Seabest and WRMI because the defendants were aware they were affiliating themselves with a business with headquarters in this state, that its operations would be supervised by those headquarters, and that any litigation on the contract would occur in this forum.   In other words, the exercise of specific jurisdiction was proper in Vons because the claims asserted against the nonresident defendants arose from contract.    

The Court of Appeal in Integral Development held similarly, stating “[t]he making and performance of a contract in California may be sufficient to sustain jurisdiction even if the defendant has no other California contacts, so long as the cause of action asserted against defendant is based on the contract.”  (Integral Development, 99 Cal.App.4th at p. 590.)   

Here, Plaintiff asserts (or will assert) a cause of action for breach of fiduciary duty against BOU.  (See Request for Judicial Notice, Steuer Decl., Ex. 1.)  A breach of fiduciary duty claim sounds in tort, not in contract. (See, e.g., Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708 [“[Plaintiff’s] claims for constructive fraud and breach of fiduciary duty sound in tort”].)   

Plaintiff fails to establish BOU purposefully availed itself of this forum.  The court lacks specific jurisdiction over BOU.   

Before reaching this step, Plaintiff must cure the defects identified in Section B 1.  Should Plaintiff succeed and should Defendant seek to quash again, the court will revisit the question whether to grant Plaintiff the right to take jurisdictional discovery.  (Mihlon v. Sup. Ct. (1985) 169 Cal.App.3d 703, 710 [jurisdiction over a nonresident defendant is generally entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof].)    

IV. CONCLUSION  

Because of the CCP section 474 defects noted herein, Specially Appearing Defendant Bank of Utah’s Motion to Quash is GRANTED.