Assn. of the Vietnamese Navy Frogmen v. Le

Filed 3/27/07 Assn. of the Vietnamese Navy Frogmen v. Le CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Mary Fingal Erickson, Judge. Affirmed.

Victor E. Hobbs for Plaintiff and Appellant.

T. Emmet Thornton & Associates, T. Emmet Thornton and Mark L. Hirschberg for Defendant and Respondent.

* * *

Plaintiff, the Association of Former Vietnamese Navy Frogmen (the Association) appeals the trial courts decision granting An Dinh Les motion to quash service and dismiss the lawsuit against him. The court found that California did not have personal jurisdiction over Le. We agree and affirm.

I

FACTS

The Association is a nonprofit California corporation. Defendant An D. Le is a resident of Texas, and owns no property here. In 2003, Le made his only visit to California in the past 15 years to vote in an Association election.

The details of what took place next are disputed. According to Hung Tan Phan, the Associations president, at the 2003 election, he was selected by me to host and supervise the First Anniversary of the Association and Fund Raising Party in 2004 in Houston, Texas. The choice was made in California while . . . Le was still in California. He further states: If . . . Le did not make this trip to California, he would not be selected to host and supervise the event. Phan characterizes Les action of taking on this responsibility as an oral contract.

According to Le, he received a letter in November 2003 asking him to host and supervise the Texas event. Le further claimed he entered into contracts in Texas in furtherance of the event, and that planning and purchasing activities took place there. Phan states the November letter was to finalize our oral contracts and claims the letter transmuted them into written contracts. The letter, which was written and sent from California, includes Phans typed name but no signatures. It is entitled Delegation Letter.

During planning for the event, Le often consulted with Phan by telephone and asked him for help in purchasing or borrowing materials for the event from California. Phan also states that three professional singers were hired from California and that a drama written for the event was by an author from California.

With respect to the financial aspects, Phan asserts that the proceeds were deposited into a Texas branch of the Bank of America for the Associations account, which was located in California. Funds needed to pay for goods and services were paid from that account.

In May 2005, the Association filed suit against Le, alleging breach of contract, common counts, and fraud. The complaint essentially alleged that the event, which was conducted in Texas, should have realized greater profits than those deposited into the Associations account. Le filed a motion to quash service and dismiss the complaint, and after briefing and argument, the court granted the motion. The Association now appeals.

II

DISCUSSION

Burden of Proof and Standard of Review for Personal Jurisdiction

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendants burden to demonstrate that the exercise of jurisdiction would be unreasonable. [Citation.] When there is conflicting evidence, the trial courts factual determinations are not disturbed on appeal if supported by substantial evidence. [Citation.] When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record. [Citation.] (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons Companies).)

General Principles of Personal Jurisdiction

As stated in Vons Companies, supra, 14 Cal.4th 434, Californias long-arm statute authorizes California courts to exercise jurisdiction on any basis not inconsistent with the Constitution of the United States or the Constitution of California. (Code Civ. Proc.,  410.10.) A state courts assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate traditional notions of fair play and substantial justice. [Citations.]

(Id. at pp. 444-445.)

Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are substantial . . . continuous and systematic. [Citations.] In such a case, it is not necessary that the specific cause of action alleged be connected with the defendants business relationship to the forum. [Citations.] Such a defendants contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction. [Citation.] (Vons Companies, supra, 14 Cal.4th at

pp. 445-446.)

The Association does not appear to be arguing that Le is subject to general jurisdiction in California.^[1] We therefore proceed to the specific jurisdiction analysis. If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits [citation], and the controversy is related to or arises out of a defendants contacts with the forum. [Citations.] (Vons Companies, supra, 14 Cal.4th at p. 446.)

The test for specific jurisdiction consists of two parts. First, we consider whether the defendant purposefully availed himself of forum benefits and whether the controversy relates to the defendants contacts with the forum. (Vons Companies, supra, 14 Cal.4th at p. 446.) If the first prong is met, we must then consider whether exercise of jurisdiction would be reasonable. (Id. at p. 449.)

The United States Supreme Court explained the meaning of purposeful availment in Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462 (Burger King): This purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, [citations] or of the unilateral activity of another party or a third person, [citation]. Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State. [Citations.] Thus where the defendant deliberately has engaged in significant activities within a State, [citation], or has created continuing obligations between himself and residents of the forum, [citation], he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by the benefits and protections of the forums laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. (Id. at pp. 475-476, fns. omitted.)

None of the facts set forth by the Association meet this standard. It relies primarily on the fact that the Texas event was inextricably linked to the California Association. This, however, does not link the event to California, only to the Association. The activities the Association points to such as depositing money in a Texas branch of a national bank for a particular account which happened to be in California is not the type of significant activit[y] contemplated by the court in Burger King.

Similarly unavailing are the Associations claims that engaging in phone calls to California to plan an event in Texas constitutes significant contacts. Purchasing supplies and hiring entertainers do not create continuing obligations between himself and residents of the forum, to the extent that Le has availed himself of the privilege of conducting business here. (Burger King, supra, 471 U.S at pp. 475-476.) Les incidental activities with people in California were entirely for the purpose of conducting the event in Texas. Further, the controversy here does not arise out of any of these contacts, but the overall profits from the event itself, which was planned in Texas and took place in Texas.

To the extent that the Association relies on the purported contract, written or oral, entering into a contract with a California party is not sufficient to establish purposeful availment. (Burger King supra, 471 U.S. at p. 478.) Rather, a court must evaluate the contract terms and the surrounding circumstances to determine whether the defendant purposefully established minimum contacts within the forum. Relevant factors include prior negotiations, contemplated future consequences, the parties course of dealings, and the contracts choice-of-law provision. [Citation.] (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907.)

There is no evidence of prior negotiations here. Nothing in the purported contract in this case suggests to a reasonable person that he might be subject to jurisdiction in California. The parties course of dealings amounted to phone calls between Texas and California, and ultimate performance of the contract in Texas. The fact that the delegation letter was written and mailed from California is completely unpersuasive.

The Association also urges us to consider the effects of Les activities in California. One way for a court to find purposeful availment is the effects test articulated by the United States Supreme Court in Calder v. Jones (1984) 465 U.S. 783 (Calder). In Calder, a reporter and editor of the National Enquirer challenged Californias jurisdiction over them in a libel suit brought by a California resident. The court held: The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondents emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the effects of their Florida conduct in California. (Id. at pp. 788-789, fn. omitted.)

Further, [Petitioners] intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must reasonably anticipate being haled into court there to answer for the truth of the statements made in their article. [Citations.] (Calder, supra, 465 U.S. at pp. 789-790.) Thus, in examining the relationship between the defendant,

the forum, and the litigation the facts were sufficient to justify jurisdiction. (Id.at

p. 788.)

As our Supreme Court has noted, courts throughout the country have struggled to apply Calder outside the defamation context. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 270-271.) Despite this struggle, most courts agree that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test. (Ibid.) The court adopted a test which requires not only harm, but an act intentionally directed at the forum state. (Id. at pp. 271-273.)

There is simply no such evidence of such an act here. Le is accused of misfeasance pertaining to an event planned in Texas, which the Association alleges failed to make a sufficient profit. Even if true, it is difficult to see how this could be analogized to Calder or other effects cases. There is simply no act purportedly directed at California that could justify jurisdiction on this basis.

The focus of the Associations remaining arguments appears to address whether exercising jurisdiction would be reasonable. Because we do not find the necessary minimum contacts, however, we do not reach this second stage of the analysis.

III

DISPOSITION

The order of dismissal is affirmed. Le is entitled to his costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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^[1]The Associations brief is often confusing and its arguments are unclear. Its argument section includes statements of rules without analysis, and no application to the facts before us. We have done our best to parse the arguments the Association is trying to offer, and once again remind litigants that failure to adequately support its arguments with analysis is deemed a waiver of that argument. We treat a point not supported by reasoned argument and citations to authority as waived. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)