Brue v. Shabaab

• Decision Date: 14 September 2020
• Docket Number: B294814
• Citation: 269 Cal.Rptr.3d 124,54 Cal.App.5th 578
• Court: California Court of Appeals Court of Appeals
• Parties: Dennis C. BRUE, as Special Administrator, etc., Plaintiffs and Appellants, v. Al SHABAAB, Defendant and Respondent.

54 Cal.App.5th 578

269 Cal.Rptr.3d 124

Dennis C. BRUE, as Special Administrator, etc., Plaintiffs and Appellants,

v.Al SHABAAB, Defendant and Respondent.

B294814

Court of Appeal, Second District, Division 7, California.

Filed September 14, 2020

Haysbert Moultrie and Nazareth M. Haysbert, Woodland Hills, for Plaintiffs and Appellants.

No appearance by Defendant and Respondent.

PERLUSS, P. J.

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.

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 complaint³ and dismissed without prejudice the Githakwa parties’ three state causes of action, granting them leave to allege additional facts, including those absent from their 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 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 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 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...