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Filed 2/4/09 Joaquin M. v. Rivera CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN JOAQUIN M., B205138 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC358718) v. CARDINAL NORBERTO RIVERA et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Elihu M. Berle, Judge. Affirmed. Jeff Anderson & Associates, Michael G. Finnegan; Drivon, Turner & Waters, Laurence E. Drivon, Robert T. Waters; Law Offices of Martin D. Gross and Martin D. Gross for Plaintiff and Appellant. Mayer Brown, Donald M. Falk, Michael L. Cypers, Evan M. Wooten and Steven R. Selsberg, pro hac vice, for Defendants and Respondents. _______________________ INTRODUCTION Plaintiff Joaquin M. appeals from the judgment of dismissal entered after the trial court granted the motion of defendants Cardinal Norberto Rivera and the Diocese of 1 Tehuacan to quash service of process for lack of personal jurisdiction. The question presented for resolution is whether California courts may exercise personal jurisdiction over these foreign defendants in an action brought by a foreign plaintiff for injuries that occurred in a foreign jurisdiction. We conclude they may not and affirm. 2 FACTUAL AND PROCEDURAL BACKGROUND A. The parties and the operative complaint In September 2006, plaintiff, an adult resident and citizen of Mexico, instituted this action against defendants Cardinal Norberto Rivera (also known as Cardinal Norberto Rivera Carrera but referred to herein as Cardinal Rivera), a citizen of Mexico, the Diocese of Tehuacan, a Mexican organization, Father Nicholas Aguilar (also known as Nicholas Aguilar Rivera but referred to herein as Father Aguilar), a citizen of Mexico, 3 and others. 1 In actuality, the trial court entered judgment in favor of defendants Cardinal Rivera and the Diocese of Tehuacan. We construe the judgment to be one dismissing these defendants from the action due to lack of personal jurisdiction. 2 On our own motion, we have augmented the record on appeal to include the superior court file. (Cal. Rules of Court, rule 8.155(a).) 3 Plaintiff also named Cardinal Roger Mahony (Cardinal Mahony) and the Roman Catholic Archbishop of Los Angeles, a corporation sole, (the Los Angeles Archdiocese) as defendants. On August 6, 2007, counsel advised the trial court that the matter had been settled as to Cardinal Mahony and the Los Angeles Archdiocese. On December 6, 2007, plaintiff requested that the action be dismissed with prejudice as to Cardinal Mahoney and the Los Angeles Archdiocese. Dismissal was entered that same date as requested. 2 In his operative first amended complaint filed on June 4, 2007, plaintiff alleged that Cardinal Rivera and the Diocese of Tehuacan sent Father Aguilar, a Roman Catholic 4 priest incardinated in the Diocese of Tehuacan, to work in the Los Angeles Archdiocese, knowing that he had a history of sexual misconduct. While working in the Los Angeles Archdiocese, Father Aguilar sexually molested numerous children. In January 1988, after church officials in Los Angeles learned about Father Aguilar’s criminal activities, but before the police could arrest him, he left Los Angeles and returned to Mexico. In March 1988, the Los Angeles District Attorney’s Office filed 19 counts of felony child molestation against Father Aguilar involving 10 victims. Police detectives obtained a felony arrest warrant for Father Aguilar, who remains a fugitive. More than six years later, in 1994, Father Aguilar sexually molested plaintiff in Mexico. Plaintiff was 13 years old at the time. B. Motion to quash service of process On February 16, 2007, Cardinal Rivera and the Diocese of Tehuacan appeared specially and moved to quash service of summons for lack of personal jurisdiction pursuant to Code of Civil Procedure sections 410.10 and 418.10. They argued they lacked minimum contacts with the State of California to support a constitutional basis for jurisdiction over them. The motion to quash was supported by the declarations of Cardinal Rivera and the current bishop of the Diocese of Tehuacan, Bishop Rodrigo Aguilar Martinez (Bishop Martinez). 4 “Incardination is a formal state by which a Roman Catholic priest is made subject to the authority of a bishop.” (Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th 423, 427, fn. 1, citing Stevens v. Roman Catholic Bishop of Fresno (1975) 49 Cal.App.3d 877, 885.) The bishop to whom a priest is incardinate is responsible for supervision of that priest. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1561-1562.) 3 Cardinal Rivera was born in Mexico. Other than four years during which he studied in Rome, Italy, he has lived in Mexico his entire life. Although he has vacationed in California, he has never lived in, and owns no real or personal property in, California. Also, he has never been to California on church business, and he has no authority over church business conducted in California. In 1966, Cardinal Rivera was ordained a priest of the Roman Catholic Church in the Archdiocese of Durango, Mexico. In 1985, he was ordained and made Bishop of the Diocese of Tehuacan, a position he held until his appointment, in 1995, as Archbishop of Mexico. In 1998, Pope John Paul II proclaimed him Cardinal of Mexico. Cardinal Rivera has spent his entire church career in Mexico. He has never done business or maintained an office in California. He has no agents or employees and maintains no books, accounts or records in California. In 1986, in his then capacity as Bishop of the Diocese of Tehuacan, Cardinal Rivera learned that Father Aguilar, who was a parish priest at the parish of San Sebastian Martir, Cuacnopalan in the Diocese of Tehuacan, had been assaulted at his parish residence. Rumors led Cardinal Rivera to suspect that the assault may have been precipitated by a homosexual incident. Since Father Aguilar’s performance at the church had given rise to controversy, Cardinal Rivera did not know if the rumors he had heard were true or motivated by resentment. There was no allegation or evidence suggesting the incident involved children. Following the assault of Father Aguilar, Cardinal Rivera reprimanded him and counseled him to seek rest and psychiatric help. Father Aguilar stated he might travel to California, where he had family. Cardinal Rivera informed Father Aguilar of his intent to replace him as a parish priest at San Sebastian Martir. The replacement was made in January 1987. On January 27, 1987, Father Aguilar tendered his irrevocable resignation from the San Sebastian Martir Parish to Cardinal Rivera and voiced his intention to move to Los Angeles. That same day, Cardinal Rivera wrote a letter introducing Father Aguilar to Cardinal Mahony, who then was the Archbishop of the Los Angeles Archdiocese. 4 Inasmuch as Cardinal Rivera did not know whether the rumors about Father Aguilar’s homosexuality were true and thus whether he was fit to continue in service as a priest, he did not recommend him for priestly duties in Los Angeles. Cardinal Rivera left that decision to Cardinal Mahoney. Because Cardinal Rivera suspected that Father Aguilar was homosexual, he “cautioned” Cardinal Mahoney that Father Aguilar’s trip to Los Angeles was motivated by “‘family and health reasons,’” a phrase “used within the Church to warn that a priest suffers from some sort of problem.” Cardinal Rivera left it up to Cardinal Mahoney to inquire further regarding Father Aguilar’s history and problems. On March 12, 1987, Cardinal Rivera received a letter from Father Aguilar, explaining that he had interviewed with Monsignor Thomas Curry (Monsignor Curry) of the Los Angeles Archdiocese. On Monsignor Curry’s behalf, Father Aguilar asked Cardinal Rivera to correspond confidentially with then Archbishop Mahoney. Based upon the information sought, Cardinal Rivera believed that Monsignor Curry sought to uncover the “family and health reasons” for Father Aguilar’s visit to Los Angeles. On March 23, 1987, Cardinal Rivera sent Cardinal Mahony a confidential letter (with a copy to Monsignor Curry) informing him about Father Aguilar’s 1986 assault. Cardinal Rivera noted “that ‘it is suspected that the underlying cause that provoked this assault was due to homosexuality problems’” and further “cautioned that ‘everything had remained at the accusation and suspicion level.’” Inasmuch as Cardinal Rivera did not know whether Father Aguilar was fit for pastoral work, Cardinal Rivera did not recommend Father Aguilar for such work as had been requested. On December 20, 1987, Father Aguilar wrote to Cardinal Rivera, requesting permission to serve in Los Angeles indefinitely. Cardinal Rivera did not respond. In his declaration, Cardinal Rivera further noted that he at no time transferred Father Aguilar to Los Angeles. Indeed, under canon law, he did not have the authority to transfer any priest outside the Diocese of Tehuacan. Cardinal Rivera only granted Father Aguilar permission to serve in Los Angeles, which permission was conditioned upon Cardinal Mahoney’s acceptance of Father Aguilar for such service. 5 The Diocese of Tehuacan did not pay Father Aguilar’s travel expenses to Los Angeles. After Father Aguilar left for Los Angeles, the Diocese of Tehuacan maintained no control over him. The Diocese did not direct and was unaware of Father Aguilar’s activities while in California. On January 11, 1988, two days after Father Aguilar fled Los Angeles, Monsignor Curry wrote to Cardinal Rivera to inform him that the Los Angeles Police Department was looking for Father Rivera so it could arrest him for sexually abusing children.