Brue v. Shabaab ( 2020 )

Filed 9/14/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DENNIS C. BRUE, as Special B294814
Administrator, etc.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC615963)
v.
AL SHABAAB,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Terry A. Green, Judge. Affirmed.
Haysbert Moultrie and Nazareth M. Haysbert for Plaintiffs
and Appellants.
No appearance by Defendant and Respondent.
___________________
Dennis C. Brue as administrator of the estate of Angela
Nyokabi Githakwa, Raphael Githakwa Kimata, Regina
Nyambura Githakwa, Caroline Njeri Githakwa and Samuel
Kimata Githakwa (collectively Githakwa parties), individually
and on behalf of all others similarly situated, appeal the order
denying their request for entry of a default judgment and
dismissing their wrongful death action against the terrorist
organization Al Shabaab, contending the trial court erred in
determining sua sponte it lacked personal jurisdiction over
Al Shabaab and dismissing the lawsuit without first holding a
hearing on that issue. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Githakwa Parties’ Initial Complaint and Request
for Entry of a Default Judgment
Over the course of 15 hours on April 2, 2015, militants
affiliated with Al Shabaab, 1 a terrorist organization with roots in
Somalia, murdered 148 students in their dormitories at
Garissa University in Kenya, including 21-year-old Angela
Nyokabi Githakwa. Angela’s four surviving parents and siblings,
all residents and citizens of Kenya, as was Angela, along with the
special administrator of her estate in California, 2 sued
Al Shabaab and 20 unnamed defendants seeking more than
$100 million in emotional, psychological and economic damages
resulting from her death.
1
Al Shabaab means “the youth” in Arabic.
2
The operative second amended complaint explained Brue, a
California lawyer, was appointed as special administrator for the
purpose of pursuing claims against Al Shabaab under California
and Kenyan law.
2
In their original complaint filed April 4, 2016, the
Githakwa parties alleged a state law cause of action for wrongful
death on behalf of Angela’s family members, a survival claim on
behalf of her estate and a cause of action for intentional infliction
of emotional distress on behalf of all of them. The complaint also
asserted multiple federal causes of action against Al Shabaab for
extrajudicial killing in the course of war crimes, crimes against
humanity and civil violations of the Racketeer Influenced and
Corrupt Organizations Act (RICO).
Between July and August 2016 the Githakwa parties
served Al Shabaab by mailing or personally serving four
Al Shabaab members incarcerated in federal prison in California,
Illinois, Kansas and Louisiana. On August 5, 2016 the Githakwa
parties moved for an order deeming service effective under
Corporations Code section 18220 and Code of Civil Procedure
section 416.40, subdivision (c). The trial court granted their
motion on October 4, 2016. After Al Shabaab failed to respond to
the complaint, the Githakwa parties on January 17, 2017
requested entry of default. The clerk entered the default the
same day.
On April 4, 2017 the Githakwa parties filed an application
for default judgment supported by multiple declarations. On
June 14, 2017 the trial court dismissed with prejudice all federal
claims alleged in the complaint 3 and dismissed without prejudice
the Githakwa parties’ three state causes of action, granting them
leave to allege additional facts, including those absent from their
3
The court ruled state courts lack jurisdiction over claims
brought under the law of nations and the Githakwa parties had
failed to allege an “identifiable injury to the domestic commerce
of the United States” as required for their RICO claims.
3
original pleading but presented by declaration with their
application for default judgment, to support personal jurisdiction
over Al Shabaab. However, the court cautioned, even with
additional facts pleaded with particularity, it was unclear
whether they “would be sufficient to show that Defendant has
purposefully availed itself under California law.”
2. The Githakwa Parties’ Operative Second Amended
Complaint and Request for Default Judgment
The Githakwa parties filed a first amended complaint on
September 5, 2017 and the operative seconded amended
complaint on October 6, 2017 as a putative class action on behalf
of themselves and all others similarly situated, alleging the
three state law causes of action that had been dismissed without
prejudice. Unlike the original complaint, which had alleged both
general and specific personal jurisdiction over Al Shabaab, the
second amended complaint asserted only that the court had
general personal jurisdiction over Al Shabaab.
In 42 paragraphs over eight pages the Githakwa parties
attempted to allege facts demonstrating Al Shabaab’s “systematic
and continuous terrorist activities in and through California.”
They alleged Al Shabaab had sent agents to live in California,
attempted to recruit and radicalize California residents and to
communicate with those already radicalized, and received
financial support from individuals living in California.
Specifically, the Githakwa parties asserted that residents of
California and the United States (without distinguishing between
the two) donated approximately $70-$100 million annually to
Al Shabaab. They further alleged that Basaaly Moalin, a man
who lived in San Diego, was “one of the significant individual
monetary contributors to Al Shabaab.” Moalin, they averred, had
4
been arrested in San Diego in late October 2010 based on
1,800 intercepted phone calls from or to San Diego. Among these
calls were conversations between Moalin and Al Shabaab leaders.
In total, the Githakwa parties’ pleading implicated
six Southern California residents by name as Al Shabaab
affiliates: Moalin; Moalin’s accomplice Issa Doreh, who had also
been arrested in San Diego the day after Moalin’s arrest; another
San Diego man, Mohamed Khadar, who was arrested and
convicted for “using his influence to solicit funds from others”; a
fourth San Diego resident, Jehad Serwan Mostafa, indicted for
joining Al Shabaab and conspiring to provide material support to
the organization; a San Diego woman, Nima Ali Yusuf, who
admitted to providing support to Al Shabaab through funding
and personnel; and an Anaheim resident, Ahmed Nasir Taalil
Mohamud, who was “convicted in 2013 of providing material
support to Al Shabaab and money laundering.”
Further, the Githakwa parties suggested California
residents had been targets of Al Shabaab intimidation: Multiple
individuals with connections to Al Shabaab had threatened
Los Angeles residents Trey Parker and Matt Stone, the creators
of the television show South Park. In addition, in a February
2015 video Al Shabaab had threatened to attack shopping malls
in the United States, including “Jewish-owned shopping malls in
California.” The videos’ purported purpose was to inspire lone
wolf attacks by radicalized individuals in the United States and
California.
Finally, the Githakwa parties alleged California residents
had been victims of Al Shabaab attacks: A San Diego-based
nonprofit’s volunteer was killed in an Al Shabaab suicide
bombing, and a former San Diego high school student was
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wounded during an attack on a mall in Kenya. The Githakwa
parties also described the December 2, 2015 terrorist attack at
the Inland Regional Center in San Bernardino, which had killed
14 people and wounded 22 others. They alleged evidence
suggesting Syed Rizwan Farook, one of the two perpetrators, had
contact with Al Shabaab prior to the attack.
During October 2017 the Githakwa parties served the
four imprisoned Al Shabaab members with the second amended
complaint in the same manner the trial court had found effective
for the initial complaint. The Githakwa parties filed proofs of
service with the trial court on November 2, 2017. Again,
Al Shabaab did not respond to the second amended complaint or
to the statement of damages served on May 10, 2018. On
June 27, 2018, at the Githakwa parties’ request, the clerk
entered Al Shabaab’s default.
On August 31, 2018 the Githakwa parties submitted their
application for entry of a default judgment against Al Shabaab.
With their application the Githakwa parties included
declarations by two expert witnesses on terrorism and
counterterrorism, Evan Kohlmann and Kaj Larsen. Kohlmann’s
declaration stated that many of Al Shabaab’s foreign fighters
from the United States and some of its American financial
support came from San Diego. Larsen’s declaration detailed FBI
disruption of domestic terror plans by “homegrown” jihadis from
Somali-American communities in San Diego. He described the
Somali-American communities in San Diego, and in California
generally, as the origin of a portion of Al Shabaab’s funding.
Larsen also suggested, should the court be permitted to view
classified information, it would strengthen and confirm his
conclusions. The Githakwa parties also included a legal
6
memorandum describing the procedural history of the case,
restating the ties between Al Shabaab and California and
detailing their damage claims.
3. The Court’s Dismissal of the Case
On November 9, 2018 the trial court denied the Githakwa
parties’ request for entry of a default judgment, ruling the court
lacked personal jurisdiction over Al Shabaab. In its order
dismissing the action, the court explained fundraising alone was
insufficient to confer general jurisdiction over an organization.
Further, the court ruled, jurisdiction over individual criminal
defendants affiliated with Al Shabaab did not create jurisdiction
over the organization as a whole. Finally, although the Githakwa
parties had only alleged the court’s general jurisdiction over
Al Shabaab, the court ruled it could not assert specific
jurisdiction over Al Shabaab arising out of the Garissa University
attack. The court explained, “There is no ‘black hat’ exception in
our law of civil jurisdiction which permits the court to sanction
the wicked, no matter how weak the punishment appears next to
the crime or how richly their victims deserve what comfort and
closure a recovery can bring.”
The Githakwa parties filed a timely notice of appeal.
DISCUSSION
1. The Trial Court Did Not Violate the Githakwa Parties’
Due Process Rights by Determining It Lacked
Jurisdiction over Al Shabaab
a. A court may determine its jurisdiction before entering
a default judgment
Because Al Shabaab failed to appear, the Githakwa parties
argue, it forfeited its right to challenge the trial court’s exercise of
jurisdiction over it and the court erred in evaluating that issue on
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its own. The first aspect of this two-pronged argument is
fundamentally wrong. Although a defendant may waive an
objection to the court’s lack of personal jurisdiction, for example
by making a general appearance (In re Marriage of Obrecht
(2016) 245 Cal. App. 4th 1, 8 [“[b]y generally appearing, a
defendant relinquishes all objections based on lack of personal
jurisdiction or defective process or service of process”];
see Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites
de Guinee (1982) 456 U.S. 694, 703-704 [a party may,
intentionally or unintentionally, waive an objection to the lack of
personal jurisdiction by contract, appearance in court or failure to
raise the defense in an answer or responsive pleading];
Rockefeller Technology Investments (Asia) VII v. Changzhou
SinoType Technology Co., Ltd. (2020) 9 Cal. 5th 125, 139), a
defendant’s failure to appear does not forfeit an objection the
court has no personal jurisdiction over it. To the contrary, a trial
court lacks jurisdiction in a fundamental sense when it lacks
personal jurisdiction over a party. (Albelleira v. District Court of
Appeal (1941) 17 Cal. 2d 280, 288.) As such, any ensuing
judgment is void and “‘vulnerable to direct or collateral attack at
any time.’” (People v. American Contractors Indemnity Co. (2004)
33 Cal. 4th 653, 660; accord, Armstrong v. Armstrong (1976)
15 Cal. 3d 942, 950 [“[c]ollateral attack is proper to contest lack of
personal or subject matter jurisdiction”]; Strathvale Holdings v.
E.B.H. (2005) 126 Cal. App. 4th 1241, 1249 [attack on judgment
for lack of personal jurisdiction may be brought at any time]; see
Lee v. An (2008) 168 Cal. App. 4th 558, 564 [default judgment
entered by court that lacked personal jurisdiction can be set aside
as void].)
8
The second aspect of the Githakwa parties’ argument—the
propriety of the trial court reviewing sua sponte the issue of
personal jurisdiction before entering a default judgment—has not
been directly addressed by California courts, but federal courts
have uniformly upheld the district court’s authority to do so.
(E.g., Mwani v. Osama Bin Laden (D.C. Cir. 2005) 417 F.3d 1, 6
[“a court should satisfy itself that it has personal jurisdiction
before entering judgment against an absent defendant”]; System
Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy (5th Cir. 2001)
242 F.3d 322, 324 [district court did not err in assessing personal
jurisdiction sua sponte prior to entering default judgment]; Tuli
v. Republic of Iraq (In re Tuli) (9th Cir.1999) 172 F.3d 707, 712
[court may sua sponte dismiss an action for lack of personal
jurisdiction before entering a default judgment]; Dennis Garberg
& Assocs. v. Pack-Tech Internat. Corp. (10th Cir. 1997) 115 F.3d
767, 772 [“district court must determine whether it has
jurisdiction over the defendant before entering judgment by
default against a party who has not appeared”].) 4 Determining
whether personal jurisdiction exists, the federal courts reason,
4
The Githakwa parties’ description of a split in federal
authority on this question is illusory. The cases they cite
illustrate only that sua sponte review is treated differently in
different circumstances. Where a party has appeared, raised a
defense and abandoned it, sua sponte review of personal
jurisdiction before entering a default judgment is permissible, but
not mandatory. (City of New York v. Mickalis Pawn Shop, LLC
(2011) 645 F.3d 114, 135; e360 Insight v. Spamhaus Project
(2007) 500 F.3d 594, 599-600.) In contrast, when a defendant has
failed to appear, the federal circuit courts have unanimously held
an affirmative duty exists to determine personal jurisdiction
before entering a default judgment.
9
safeguards against entry of a void judgment. (See, e.g., System
Pipe & Supply, Inc., at p. 324; Tuli, at p. 712; Williams v. Life
Sav. & Loan (10th Cir. 1986) 802 F.2d 1200, 1203.)
That compelling rationale applies equally in California’s
courts, and we adopt it as our own. The trial court did not err in
this case by evaluating its personal jurisdiction over Al Shabaab
before granting the Githakwa parties’ request for entry of a
default judgment.
b. The trial court provided the Githakwa parties
adequate notice and an opportunity to address
personal jurisdiction
The constitutional guarantee of due process requires a trial
court give a plaintiff notice and an opportunity to respond before
dismissing an action on its own motion. (In re Marriage of
Straczynski (2010) 189 Cal. App. 4th 531, 538-539 (Straczynski);
Bricker v. Superior Court (2005) 133 Cal. App. 4th 634, 639; Moore
v. California Minerals Products Corp. (1953) 115 Cal. App. 2d 834,
835-837 (Moore).) Beyond that fundamental principle, however,
“the precise dictates of due process are flexible and vary
according to context.” (Today’s Fresh Start, Inc. v. Los Angeles
County Office of Education (2013) 57 Cal. 4th 197, 212.) The right
to be heard does not necessarily require the court give a party the
opportunity for an oral presentation; due process may be satisfied
when the party has been able to present a written argument that
fully addresses the determinative issues. (See Lewis v. Superior
Court (1999) 19 Cal. 4th 1232, 1247 [oral hearing not required
before court issues a peremptory writ in the first instance; “use of
the terms ‘heard’ or ‘hearing’ does not require an opportunity for
an oral presentation, unless the context or other language
indicates a contrary intent”]; Jane J. v. Superior Court (2015)
10
237 Cal. App. 4th 894, 909 [same]; see also Morris B. Silver M.D.,
Inc. v. International Longshore & Warehouse etc. (2016)
2 Cal. App. 5th 793, 798 (Morris).)
Neither Straczynski, supra, 189 Cal. App. 4th 531 nor Moore,
supra, 115 Cal. App. 2d 834, cited by the Githakwa parties,
supports their contention the procedure used here by the trial
court violated their due process rights. In Straczynski the court
of appeal held the trial court violated due process when it
dismissed a petition for dissolution of marriage for reasons
introduced for the first time at the hearing. (Straczynski, at
p. 538.) In Moore the trial court granted judgment on the
pleadings sua sponte. The court of appeal reversed because the
plaintiff had not been given the opportunity to defend his
pleading or “a chance to request the privilege of amending.”
(Moore, at p. 836.)
Unlike in Straczynski and Moore the trial court gave the
Githakwa parties specific notice that it questioned its jurisdiction
over Al Shabaab and expressly invited them to address that
issue: The court’s June 14, 2017 dismissal order explained that
the allegations in the original complaint were insufficient to
establish personal jurisdiction over Al Shabaab and gave the
Githakwa parties the opportunity to amend their complaint to
include additional facts to cure that deficiency.
As this court indicated in Morris, supra, 2 Cal. App. 5th 793,
when a party has had the opportunity to brief a determinative
legal issue, the court may decide that issue in a different
procedural context and without an additional oral hearing
without violating due process. (Id. at p. 798 [because plaintiff’s
responsive brief addressed the determinative legal issue in
opposing a demurrer, trial court did not violate due process by
11
resolving the issue and dismissing the action sua sponte].) The
Githakwa parties took full advantage of the trial court’s
invitation, thoroughly addressing the personal jurisdiction issue
in their second amended complaint and subsequent application
for a default judgment, which included supporting declarations
and a memorandum of points and authorities. The procedures
used satisfied due process.
In any event, the Githakwa parties fail to suggest what
additional information concerning personal jurisdiction—factual
or legal—they could have provided with additional notice, more
briefing or an in-person hearing, or how a further hearing would
have changed the outcome of the case. Absent any showing of
prejudice, we cannot reverse the trial court’s order. (See
Thornbrough v. Western Placer Unified School Dist. (2013)
223 Cal. App. 4th 169, 200 [“‘procedural due process violations,
even if proved, are subject to a harmless error analysis’”];
Hinrichs v. County of Orange (2004) 125 Cal. App. 4th 921, 928
[same]; see generally Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th
780, 802 [for a trial court’s order to be overturned, appellant must
demonstrate an error was prejudicial; that except for the error, a
different outcome was probable].)
2. The Trial Court Correctly Concluded It Lacked Personal
Jurisdiction over Al Shabaab
a. Governing law and standard of review
California courts may exercise personal jurisdiction “on any
basis not inconsistent with the Constitution of this state or of the
United States.” (Code Civ. Proc., § 410.10.) The exercise of
jurisdiction over a nonresident defendant comports with these
Constitutions if the defendant has such minimum contacts with
California that the assertion of jurisdiction does not violate
12
traditional notions of fair play and substantial justice. (Snowney
v. Harrah’s Entertainment, Inc. (2005) 35 Cal. 4th 1054, 1061;
Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 268;
Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th
434, 446 (Vons).)
Under the minimum contacts test personal jurisdiction may
be either general or specific. (Bristol-Myers Squibb Co. v.
Superior Court (2017) 582 U.S. ___ [137 S. Ct. 1773, 1779-1780]
(Bristol-Myers); Snowney v. Harrah’s Entertainment, Inc., supra,
35 Cal.4th at p. 1062.) General jurisdiction exists when the
defendant’s contacts with the forum state are so “substantial” or
“continuous and systematic” 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 when the
cause of action is unrelated to the defendant’s contacts with the
forum. (Vons, supra, 14 Cal.4th at p. 446; Daimler AG v.
Bauman (2014) 571 U.S. 117, 127.)
Specific jurisdiction, on the other hand, requires some
nexus between the cause of action and the defendant’s activities
in the forum state. Under well-established case law specific
jurisdiction exists when (1) the defendant has “purposefully
availed” himself or herself of forum benefits; (2) the controversy
is related to or arises out of the defendant’s contacts with the
forum; and (3) the assertion of personal jurisdiction would
comport with “‘fair play and substantial justice.’” (Pavlovich v.
Superior Court, supra, 29 Cal.4th at p. 269; accord, Vons, supra,
14 Cal.4th at p. 446; Daimler AG v. Bauman, supra, 571 U.S. at
pp. 126-127; Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462,
472-473.) There are no bright line rules for determining
jurisdiction. “‘[R]ather, the facts of each case must be weighed to
13
determine whether the requisite “affiliating circumstances” are
present.’” (Pavlovich, at p. 268.)
The plaintiff bears the burden of showing the defendant
has sufficient minimum contacts with the state to justify
jurisdiction. (Vons, supra, 14 Cal.4th at p. 449.) When the
evidence of jurisdictional facts is in conflict, we resolve that
conflict in favor of the trial court’s order, so long as it is supported
by substantial evidence. (Ibid.) If that evidence is not disputed,
the question of jurisdiction is one of law; and we independently
review the trial court’s decision. (Ibid.) Finally, we accept all
well-pleaded allegations as fact. (Steven M. Garber & Associates
v. Eskandarian (2007) 150 Cal. App. 4th 813, 823 [a defendant’s
failure to answer before a default judgment is considered an
admission of well-pleaded allegations in the complaint].)
b. Al Shabaab is not subject to the court’s general
jurisdiction
General jurisdiction over a corporation exists when that
corporation might be “fairly regarded as at home” in that state.
(Bristol-Myers, supra, 137 S.Ct. at p. 1780; Goodyear Dunlop
Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 924
(Goodyear).) As the Githakwa parties note, a terrorist
organization is not a “corporation” in the traditional sense, but
rather a “loosely organized, amorphous entity.” However, as the
Second Circuit observed, “[T]here is no reason to invent a
different test for general personal jurisdiction depending on
whether the defendant is an individual, a corporation, or another
entity.” (Waldman v. PLO (2d Cir. 2016) 835 F.3d 317, 332
[unincorporated associations Palestinian Authority (PA) and
Palestine Liberation Organization (PLO) are entities subject to
at-home test for general jurisdiction].)
14
Traditionally, a corporation is “at home” in its place of
incorporation and its principal place of business. (Daimler AG v.
Bauman, supra, 571 U.S. at p. 137.) But in an exceptional case 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. (Id. at p. 139, fn. 19.) To test that possibility, courts look
to a variety of factors, including maintenance of offices, the
presence of employees, use of bank accounts and marketing or
selling products in the forum state, to analyze whether a
corporation’s contacts render it effectively at home in that state.
(See F. Hoffman-La Roche, Ltd. v. Superior Court (2005)
130 Cal. App. 4th 782, 796; see also Waldman v. PLO, supra,
835 F.3d 317 at p. 334.)
The contacts between Al Shabaab and California described
by the Githakwa parties—six California residents allegedly
affiliated with the organization, attempts to radicalize others in
the state, receipt of material support from Californians and direct
threats and encouragement of terrorist attacks here—fall far
short of demonstrating Al Shabaab may fairly be regarded as at
home in this state.
In Halyard Health, Inc. v. Kimberly-Clark Corp. (2019)
43 Cal. App. 5th 1062, 1065 a Delaware corporation with a
principal place of business in Texas had 350 of its 42,000
employees working in California. That presence was held
insufficient to warrant the exercise of general jurisdiction over
the company. (Id. at p. 1070.) In comparison, Al Shabaab is
reported to have thousands of fighters throughout the world with
only a handful of individuals alleged to be working with or for
Al Shabaab here.
15
Similarly, in Waldman v. PLO, supra, 835 F.3d 317 the
court explained the PLO had two diplomatic offices in the
United States, employed more than a dozen individuals over a
period of two years, engaged in diplomatic activities and “‘had a
substantial commercial presence in the United States.’” (Id. at
p. 323.) Its mission to the United States in Washington D.C.
“used dozens of telephone numbers, purchased office supplies,
paid for certain living expenses for . . . the chief PLO and PA
representative in the United States, and engaged in other
transactions.” (Ibid.) Despite these ongoing connections to the
United States, the court determined the evidence demonstrated
the PA and PLO “are ‘at home’ in Palestine, where these entities
are headquartered, and from where they are directed.” (Id. at
p. 334.)
Like the PLO, Al Shabaab is headquartered outside the
United States and is “at home” far beyond our borders. Indeed,
the organization’s contacts with California are far less
substantial than the PLO’s contacts with the United States found
insufficient by the Second Circuit in Waldman. Al Shabaab
maintains no offices in California. The six California residents
affiliated with Al Shabaab are fewer in number and more
remotely connected with the organization than the 14 individuals
employed at the PLO’s mission in Washington D.C. In sum, the
limited and sporadic connections the Githakwa parties allege
Al Shabaab shares with California do not constitute the
“continuous and systematic” activities necessary to justify the
exercise of general jurisdiction over a party. (See Vons, supra,
14 Cal.4th at p. 445.)
16
c. The court lacked specific jurisdiction over
Al Shabaab for the Garissa University attack
In their second amended complaint, and for the purposes of
this appeal, the Githakwa parties contend only that the trial
court may exercise general personal jurisdiction over Al Shabaab.
In not asserting the court has specific jurisdiction over
Al Shabaab for the Garissa University attack, the Githakwa
parties appear to recognize, when no relationship exists between
the defendant’s contacts with the forum state and the specific
claims at issue, the court may not exercise specific jurisdiction
“regardless of the extent of the defendant’s unconnected activities
in the State.” (Bristol-Meyer, supra, 137 S.Ct. at p. 1781;
accord, Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019)
31 Cal. App. 5th 543, 558 [same]; see Gilmore Bank v. AsiaTrust
New Zealand Ltd. (2014) 223 Cal. App. 4th 1558, 1568 [for the
court to exercise specific jurisdiction, the controversy must relate
to, or arise out of, the defendant’s contacts with California].)
In Waldman v. PLO, supra, 835 F.3d 317 the PLO and PA’s
purposeful availment of forum benefits through offices, employees
and a commercial presence in the United States did not establish
specific jurisdiction here because that activity was unconnected
to the “suit-related conduct”—terrorist attacks in Jerusalem.
(Id. at p. 341.) While some of the victims were American citizens,
that additional fact did not change the analysis. (Id. at p. 337.)
Here, the Githakwa parties allege no connection between the
Garissa University attack and the California individuals they
have implicated as Al Shabaab affiliates. They do not suggest
any donations originating in California were used to fund the
attack. None of victims is alleged to be a California, or even
United States, citizen. No matter how heinous the attack, “the
17
defendants cannot be made to answer in this forum ‘with respect
to matters unrelated to the forum connections.’” (Id. at p. 341,
quoting Goodyear Dunlap Tires Operations, S.A. v. Brown, supra,
564 U.S. at p. 923.)
In sum, the Githakwa parties did not allege contacts
between Al Shabaab and California sufficient to warrant the
exercise of general or specific personal jurisdiction over the
defendant. The court did not err in dismissing the case for a lack
of personal jurisdiction.
DISPOSITION
The judgment is affirmed. The Githakwa parties are to
bear their own costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
DILLON, J. *
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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