Friday, February 21, 2014

Gilmore Bank v. Asia Trust New Zealand Ltd (Cal. Ct. App. - Feb. 21, 2014)

A California resident has a $3.3 million arbitration judgment entered against her.  She's got over $5 million in assets, but as the arbitration proceeds (and as her liability becomes clear), she starts frantically forming trusts and other entities and disbursing her assets to them in an attempt to stop plaintiffs from collecting on the eventual judgment.  One of her big transfers is to a New Zealand entity that the debtor solicited via e-mail and that she selected to take title to an annuity to be issued on her behalf by a Swiss insurance company.

When the debtors find out about all of this, they sue (among others) the New Zealand entity, claiming that it's required to turn over the assets that were fraudulently concealed.  That entity -- which is represented by the same lawyers that represented the debtor -- moved to quash the summons, claiming that they aren't subject to personal jurisdiction in California.

The Court of Appeal properly disagrees.  If you've got a deliberate contact with the forum state -- as the New Zealand entity does here -- that creates jurisdiction.  At least in this context.

I was somewhat surprised that Justice Ikola's opinion nowhere cites McGee v. International Life Ins. Co., a 1957 opinion from the United States Supreme Court that seems pretty on point.  In McGee, a life insurance company entered into a contract with a California resident, and that single contact was deemed sufficient to create jurisdiction given that the defendant had "purposefully availed" itself of the forum state.  If that's true in McGee, it seems equally (if not more) true here, in which a third party enters into a contract with a nonresident in order to circumvent a judgment.  There's purposeful availment in both cases.  Indeed, here, given that the debtor is in California, the relevant trusts (created by the debtor) are in California, the trustee of the trust (the debtor's niece) is in California, and the assets from the annuity are sent by the New Zealand entity to California, I think the present case is even stronger.

McGee wasn't cited by the appellant until its reply brief, so perhaps that (partially) explains the omission.  But since Justice Ikola spends a decent amount of time discussing lower federal court cases (and explaining why they're not binding on a California court), I think it might be valuable to discuss the closest United States Supreme Court case on point.  Not only because it supports the Court of Appeal's opinion.  But also because that's the one federal authority that is binding on a California tribunal.

Regardless of the omission, however, the Court of Appeal reaches the correct result.  Both jurisprudentially and as a matter of justice.