Not to Be Published in the Official Reports in The

Filed 2/4/09 Joaquin M. v. Rivera CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

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.)

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.

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.

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. Prior to receiving this correspondence, Cardinal Rivera was unaware of any wrongdoing by Father Aguilar while in Los Angeles. On February 23, 1988, Monsignor Curry again wrote to Cardinal Rivera asking for information regarding Father Aguilar’s whereabouts. Cardinal Mahoney sent a similar inquiry to Cardinal Rivera on March 4, 1988. In a letter dated March 17, Cardinal Rivera responded that he did not know where Father Aguilar was. Cardinal Rivera provided information about Father Aguilar’s family and work history, hoping that would help locate him. Cardinal Rivera also referred Cardinal Mahoney to the confidential letter of March 23, 1987 in which Cardinal Rivera noted his suspicion that Father Aguilar “suffered from homosexual problems.” Cardinal Rivera denied any attempt to facilitate Father Aguilar’s return to Mexico. Cardinal Rivera did not even know that Father Aguilar had fled California and returned to Mexico. Cardinal Rivera noted that he did not have the authority to force Father Aguilar to return to Mexico or to go back to California. After returning to Mexico, Father Aguilar did not return to the Diocese of Tehuacan. Cardinal Rivera has had no contact with Father Aguilar, and Father Aguilar did not serve under Cardinal Rivera’s control in any capacity. Cardinal Rivera denied harboring Father Aguilar or concealing his whereabouts from law enforcement or church officials in Mexico or California. In November 1994, plaintiff filed a criminal complaint in Mexico alleging that Father Aguilar molested him sexually at the San Antonio De Padua parish in Mexico. The molestation occurred in October 1994.

Bishop Martinez was appointed as the Bishop of the Diocese of Tehuacan in 1996. He explained that the Diocese of Tehuacan is a Mexican nonprofit organization with its principal place of operation in Tehuacan, Puebla, Mexico. The Diocese is incorporated under the laws of the Republic of Mexico. Its mission “is to promote the Christianity Evangel according to that established by the Roman Catholic Church, as well as being the pastoral guide for the catholic people inside the Diocese of Tehuacan.” At no time has the Diocese of Tehuacan ever conducted business in California. It has no employees in California, does not own any real or personal property in California, and has never maintained an office in California. The Diocese has not designated an agent in California to receive service of process on its behalf. The Diocese of Tehuacan and the Los Angeles Archdiocese are distinct religious organizations, each operating independently of the other. Neither organization asserts authority over the other, and the two do not interact formally with one another. Each organization has its own discrete policies, practices and finances. Plaintiff opposed the motion to quash service of process, arguing that the court had general and specific jurisdiction over Cardinal Rivera and the Diocese of Tehuacan.

C. Trial court’s ruling on the motion to quash On October 16, 2007, the trial court granted the motion to quash service of process for lack of jurisdiction. The court’s minute order of that date states: “The court finds that plaintiff has not met his burden of proof to show by a preponderance of evidence substantial, continuous and systematic contacts within the state of California to subject defendants Cardinal Rivera and the Diocese of Tehuacan to the general jurisdiction of the courts of California. The court further finds plaintiff has not met his burden of proof to show by a preponderance of evidence that defendants have purposely availed themselves of the forum benefits and that the controversy is related to or arises out of defendants’ contacts with the forum to subject defendants to specific jurisdiction of the courts of the state of California. [¶] Finally, the court finds that the exercise of personal jurisdiction over defendants in this forum would not be reasonable, given the facts that plaintiff is a

Mexican citizen, defendant Rivera is a Mexican citizen, defendant Diocese is a Mexican entity, the facts giving rise to plaintiff’s claim took place in Mexico, and Mexico has courts available to hear plaintiff’s claims.” Thereafter, on November 19, 2007, judgment was entered.

DISCUSSION

A. Personal Jurisdiction Under the Due Process Clause of the Fourteenth Amendment, California courts may exercise personal jurisdiction over a nonresident defendant who is not served with process in this state if the defendant has minimum contacts with California such that maintaining the lawsuit does not violate traditional notions of fair play and substantial justice. (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316 [66 S.Ct. 154, 90 L.Ed. 95]; Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1061.) Under California’s long-arm statute, courts are permitted to exercise personal jurisdiction on any basis consistent with the federal and state constitutions. (Code Civ. Proc., § 410.10.) Personal jurisdiction over a nonresident defendant may be either general or specific. General jurisdiction may be asserted if the nonresident defendant’s contacts with California are substantial, continuous and systematic. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 108.) A nonresident defendant who does not have substantial, continuous and systematic contacts with California may nevertheless be subject to the specific jurisdiction of our courts “if there is a sufficient nexus among the defendant, the state and the litigation.” (Id. at p. 109; Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1062.) A nonresident defendant may be subject to the specific jurisdiction of the California courts if (1) he purposefully availed himself of the benefits of the forum with regard to the immediate controversy, (2) the controversy is related to or arises out of the defendant’s contacts with the forum state and (3) the exercise of jurisdiction comports

with notions of fair play and substantial justice. (Archdiocese of Milwaukee v. Superior Court, supra, 112 Cal.App.4th at pp. 435-436.)

B. Burden of Proof “When a nonresident defendant challenges personal jurisdiction, the plaintiff must prove, by a preponderance of the evidence, the factual basis that would justify the exercise of jurisdiction. [Citations.]” (Dorel Industries, Inc. v. Superior Court (2005) 134 Cal.App.4th 1267, 1273.) “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.]” (Archdiocese of Milwaukee v. Superior Court, supra, 112 Cal.App.4th at p. 434.) “If the plaintiff meets this burden, it is then up to the defendant to show that the exercise of jurisdiction would be unreasonable. [Citation.] In this analysis, the merits of the complaint are not implicated. [Citation.]” (Dorel Industries, Inc., supra, at p. 1273.)

C. Standard of Review “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. [Citation.]” (Dorel Industries, Inc. v. Superior Court, supra, 134 Cal.App.4th at p. 1273.)

D. Analysis As previously noted, plaintiff argued below that the trial court had both general specific jurisdiction over Cardinal Rivera and the Diocese of Tehuacan. On appeal, he argues only that defendants are subject to the specific jurisdiction of the California courts.

Inasmuch as plaintiff has abandoned his general jurisdiction position, we limit any further discussion of jurisdiction to that of specific jurisdiction. Our first inquiry is that of purposeful availment. As observed in Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th 1054, “‘“[t]he purposeful availment inquiry . . . focuses on the defendant’s intentionality. [Citation.] 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.’ [Citations.] Thus, purposeful availment occurs where a nonresident defendant ‘“purposefully direct[s]” [its] activities at residents of the forum’ [citation], ‘“purposefully derive[s] benefit” from’ its activities in the forum [citation], ‘create[s] a “substantial connection” with the forum’ [citation], ‘“deliberately” has engaged in significant activities within’ the forum [citation], or ‘has created “continuing obligations” between [itself] and residents of the forum’ [citation].” (Id. at pp. 1062-1063.) Plaintiff contends that the requirement of purposeful availment is satisfied in this case because Cardinal Rivera and the Diocese of Tehuacan intentionally sent a known sexual deviant to California. Under the “effects test,” “an out-of-state defendant may be subject to personal jurisdiction in California based upon evidence establishing the defendant engaged in intentional conduct expressly aimed at or targeting California and the defendant knew the intentional conduct would cause harm in this state.” (Archdiocese of Milwaukee v. Superior Court, supra, 112 Cal.App.4th at p. 426, citing Pavlovich v. Superior Court (2002) 29 Cal.4th 262.) In Archdiocese of Milwaukee, supra, the Milwaukee Archdiocese intentionally sent a priest to California, knowing he was a pedophile who had been convicted of sexual perversion. While performing pastoral duties in California, the priest molested the plaintiff. While noting that the Milwaukee Archdiocese did not know the victim and could not have aimed its conduct at him, the appellate court stated: “[W]e do not believe that effects test required the Milwaukee Archdiocese to know the identities of [the priest’s] future victims. . . . The nature of the Milwaukee Archdiocese’s conduct—sending a pedophile priest directly into

California—meant the Milwaukee Archdiocese’s conduct would harm California residents. In other words, the Milwaukee Archdiocese’s conduct targeted a known group of California residents—boys, specifically, Roman Catholic boys—as a means of getting [the priest] out of the Milwaukee Archdiocese. Such targeting is, we believe, sufficiently individualized to satisfy due process because the Milwaukee Archdiocese could reasonably anticipate being haled [sic] into court in California.” (112 Cal.App.4th at p. 440, italics omitted.) Whether Cardinal Rivera and the Diocese of Tehuacan purposefully availed thems,lves of the benefits of the forum by sending a known sexual deviant to California is a question we actually need not and therefore do not decide. For even if we were to assume that they did so, we cannot conclude that specific jurisdiction exists in this case. Besides purposeful availment, there must be a substantial connection between the defendant’s contacts and the forum. While “‘[a] claim need not arise directly from the defendant’s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction,’” the exercise of specific jurisdiction will be appropriate if the claim “bears a substantial connection to the nonresident’s forum contacts.” (Archdiocese of Milwaukee v. Superior Court, supra, 112 Cal.App.4th at p. 441.) In this case, plaintiff’s claims do not bear a substantial connection, let alone any connection, to Cardinal Rivera’s and the Diocese of Tehuacan’s contacts with California. Unlike the victim in Archdiocese of Milwaukee who was molested in California by a sexually deviant priest sent to California by the Milwaukee Archdiocese, plaintiff’s claim arises from an act of sexual molestation inflicted by Father Aguilar in Mexico, more than six years after the priest fled California to avoid prosecution for his sexual misdeeds committed while in Los Angeles. Under these circumstances, we cannot conclude that plaintiff’s claims are related to or arise out of Cardinal Rivera and the Diocese of Tehuacan’s forum contacts. Finally, the exercise of specific jurisdiction would not be fair in this case. Cardinal Rivera and the Diocese of Tehuacan would be unduly burdened by defending in California claims arising out of Father Aguilar’s conduct committed exclusively in

Mexico. California has no interest in providing a forum to resolve a claim having its genesis in Mexico. That Father Aguilar committed similar acts six years earlier while he was in California does not compel a contrary conclusion. Given that the abuse occurred in Mexico and was inflicted by one Mexican citizen against another Mexican citizen, the resolution of plaintiff’s claim would be most efficient in Mexico. (Archdiocese of Milwaukee v. Superior Court, supra, 112 Cal.App.4th at pp. 442-443.) The trial court correctly granted Cardinal Rivera and the Diocese of Tehuacan’s motion to quash service of process.

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal. NOT TO BE PUBLISHED

JACKSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.