McClenty v. Ward

Filed 6/13/06 McClenty v. Ward CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Joan M. Lewis, Judge. We affirm the order and declare McClenty a vexatious litigant.

Booker McClenty appeals the granting of a motion to quash service of summons and dismissal of his action. Additionally, we have, on our own motion, issued an order to show cause why McClenty should not be declared a vexatious litigant.

FACTS

In July 2004, McClenty filed a complaint in San Diego County Superior Court for personal injuries sustained while he was working as a temporary employee of Olsen Staffing Service at a Frito-Lay factory in Jackson, Mississippi. In addition to suing Olsen Staffing Service, Frito-Lay, and the Mississippi Workers' Compensation Commission, McClenty sued Roderick Ward III, a Mississippi attorney, whom he had hired to pursue a workers' compensation claim in Mississippi. He sued Ward for breach of contract, alleging Ward kept the workers' compensation settlement for himself. In his complaint, he listed his address as a post office box in Seattle, Washington. He stated he was "in and out" of California, "looking for renting or home CA."

Ward filed a motion to quash service of summons or to dismiss for forum non conveniens on the basis the lawsuit had no connection to California because McClenty was not a California resident, the underlying events had occurred in Mississippi, and Ward was a Mississippi resident with no connection to California. In support of his motion, Ward filed a declaration stating he had withdrawn from the case and an order from the Mississippi Workers' Compensation Commission dismissing McClenty's claim for failure to prosecute the case.

McClenty did not oppose the motion. The trial court granted Ward's motion to quash and to dismiss for forum non conveniens "on the basis that (1) proper service was not effectuated on this Defendant; . . . (2) even if service were proper, this Court lacks personal jurisdiction over Mr. Ward," and (3) "[a]lternatively, the Court finds Defendant has met his burden in showing that California is not a convenient forum." McClenty, in propria persona, appeals the order.

DISCUSSION

I

Compliance with Service of Process Requirements

To properly serve by mail a defendant who does not reside in California, the plaintiff must send the defendant a copy of the summons and complaint by first-class mail with a return receipt requested. (Code of Civ. Proc.,^[1] § 415.40.) The undisputed evidence at the hearing established McClenty failed to comply with the statutory requirements; he did not request a return receipt.

The trial court properly granted Ward's motion to quash service based on McClenty's failure to comply with section 415.40.

II

Lack of Personal Jurisdiction

"[E]ach individual has a liberty interest in not being subject to the judgments of a forum with which he or she has established no meaningful minimum 'contacts, ties or relations.' " (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445, quoting Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) "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.' " (Vons Companies, Inc. v. Seabest Foods, Inc., at p. 445, italics omitted.) "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 defendant's contacts with the forum.' " (Id. at p. 446, italics omitted.)

In his appellate brief, McClenty appears to argue California has jurisdiction over Ward because his injury was aggravated in California. This argument is unpersuasive. McClenty's complaint against Ward was for breach of contract, that is, for allegedly retaining a workers' compensation settlement. This act, if it occurred, occurred in Mississippi while both Ward and McClenty were Mississippi residents and involved a claim being adjudicated by the Mississippi Workers' Compensation Commission. In other words, McClenty's breach of contract action did not involve any person or act connected to California. Additionally, McClenty did not present any evidence showing Ward personally had been involved in aggravating McClenty's injury. Finally, the undisputed evidence before the trial court (consisting of Ward's declaration) showed Ward had no contacts with California -- he was a Mississippi resident who practiced law solely in Mississippi.

The trial court properly granted Ward's motion to quash service.

III

Forum Non Conveniens

The trial court also properly entered a dismissal based on forum non conveniens.

"Forum non conveniens, codified in . . . section 410.30, is 'an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.' " (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 435, fn. omitted.)

The undisputed evidence presented at the hearing showed McClenty filed his workers' compensation claim in Mississippi, Ward was hired in Mississippi, he resided in Mississippi, and he had no connection with California. While McClenty stated in his complaint that he was looking for a rental or house in California, he gave a return address in Seattle, thus indicating that he also had little connection to California. Under these circumstances, we find no error in the trial court determination California was not a convenient forum.

IV

Vexatious Litigant

On our own motion, we issued an order to show cause why McClenty should not be declared a vexatious litigant pursuant to section 391, subdivision (b)(1).

"The vexatious litigant statute (§§ 391-391.7) was enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts. [Citations.] [¶] The statute defines a 'vexatious litigant,' provides a procedure in pending litigation for declaring a person a vexatious litigant, and establishes procedural strictures that can be imposed on vexatious litigants." (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008; Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44.) Upon finding an individual is a vexatious litigant, the court may "enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a); Holcomb v. U.S. Bank National Assn. (2005) 129 Cal.App.4th 1494, 1499-1500.)

Section 391, subdivision (b)(1) provides that a "vexatious litigant" includes a person who "[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." " 'Litigation' means any civil action or proceeding commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) "Manifestly, 'any civil action or proceeding' includes any appeal or writ proceeding. Of course, 'any state or federal court' includes the California Court of Appeal." (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216.)

Within the preceding three years, McClenty has prosecuted five appeals in propria persona all of which were finally determined adversely to him:

(1) McClenty v. Jack in The Box, Inc. (D042653), dismissed pursuant to California Rules of Court, rule 8(b) on November 20, 2003;

(2) McClenty v. V.A.M.C. (D046560), involuntarily dismissed on July 8, 2005;

(3) McClenty v. Morris, et al. (D046659), involuntarily dismissed on July 8, 2005;

(4) McClenty v. U.S. Army Department, Ft. Lewis, WA, et al. (D047330), involuntarily dismissed on November 17, 2005;

(5) McClenty v. Kroger Co., et al. (D047388), involuntarily dismissed on January 6, 2006.

The court finds McClenty is a vexatious litigant within the meaning of section 391. Therefore, pursuant to section 391.7, McClenty may not file "any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a).) Disobedience of this order may be punished as a contempt of court. (Ibid.) "The presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3." (§ 391.7, subd. (b).)

The clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council. (§ 391.7, subd. (e.)) Copies shall also be mailed to the presiding judge and clerk of the San Diego County Superior Court.

DISPOSITION

The order is affirmed and McClenty is declared a vexatious litigant who is

required to obtain the permission of the presiding judge whenever he proposes to file additional litigation within the State of California.

McCONNELL, P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] All statutory references are to the Code of Civil Procedure.