Roman v. Liberty University, Inc., E042838.

• Citation: 162 Cal.App.4th 670,75 Cal.Rptr.3d 828
• Decision Date: 29 April 2008
• Docket Number: No. E042838.,E042838.
• Court: California Court of Appeals
• Parties: Marlon Brando ROMAN, a Minor, etc., Plaintiff and Appellant, v. LIBERTY UNIVERSITY, INC. et al., Defendants and Respondents.

75 Cal.Rptr.3d 828

162 Cal.App.4th 670

Marlon Brando ROMAN, a Minor, etc., Plaintiff and Appellant, v. LIBERTY UNIVERSITY, INC. et al., Defendants and Respondents.

No. E042838.

Court of Appeal, Fourth District.

April 29, 2008.

Martin A. Cervantes, Rancho Cucamonga, for Plaintiff and Appellant.

Steve R. Segura, James C. Galloway, Jr., and Veatch Carlson, Los Angeles, for Defendant and Respondent Liberty University, Inc.

C. Snyder Patin, for Defendant and Respondent Shane Lucas Lancaster.

OPINION

HOLLENHORST, J.

I. INTRODUCTION

Plaintiff Marlon Brando Roman appeals from the trial court's orders granting the motion of defendant Liberty University, Inc. (Liberty) to quash service of summons for lack of personal jurisdiction and granting the motion of defendant Shane Lucas Lancaster (Lancaster) on the ground of forum non conveniens. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Plaintiffs Complaint

Plaintiff, through his guardian ad litem, filed an action for personal injury damages against defendants in the Superior Court of the State of California, County of San Bernardino. Plaintiff thereafter filed a first amended complaint, referred to hereafter as the complaint.

The complaint alleged that Liberty's recruiting coordinator had come to Rialto, California, before June 5, 2003, to recruit plaintiff to play football for Liberty in Virginia. Liberty offered plaintiff a football scholarship, and plaintiff accepted. Plaintiff executed Liberty's 2003-2004 Athletic Scholarship/Grant-in-Aid Agreement at his home in Rialto on June 8, 2003, and executed a revised agreement in Rialto on July 19, 2003. Thereafter, plaintiff attended Liberty and played first string defensive back for its football team.

The complaint alleged that while at Liberty, plaintiffs roommate was defendant Lancaster, who also played football as a defensive back for Liberty's team. Plaintiff and Lancaster had a history of leaving campus to consume alcohol after curfew. Plaintiff was disciplined by the revocation of his athletic scholarship after he was caught sneaking back onto campus on December 19, 2003, after curfew. However, Liberty did not enforce the revocation, and plaintiff continued as a student at Liberty. In early 2004, plaintiff requested a new roommate assignment because of continuing problems with Lancaster; however, Liberty never addressed the request.

The complaint also alleged that on April 21, 2004, plaintiff and Lancaster went out drinking. During the evening, Lancaster physically assaulted plaintiff. Plaintiff started to walk back to campus and fell from a train trestle. He sustained catastrophic brain injuries.

In addition, the complaint alleged that Liberty breached a legal duty owed to plaintiff because Liberty failed to (1) separate plaintiff from Lancaster after plaintiff so requested; (2) revoke Lancaster's driving privileges; (3) remove Lancaster from the campus, although Lancaster was "a disruptive influence to the residential community"; (4) provide a "safe and supportive environment"; (5) establish a rapport with plaintiff and make him aware of his right to be separated from Lancaster; and (6) confront Lancaster "regarding his various major infractions." The complaint alleged that Liberty's breach of duty caused him to fall from the train trestle.

The complaint further alleged that Lancaster owed plaintiff an ordinary duty of care not to cause harm or injury to plaintiff, and Lancaster breached that duty by "physically assaulting [plaintiff], which in turn caused [plaintiff] to attempt to walk back to [the Liberty campus] on the night of April 21, 2004."

B. Liberty's Motion to Quash Service of Summons

Liberty filed a motion to quash service of summons for lack of personal jurisdiction or, in the alternative, based on the doctrine of forum non conveniens.

Jerry Falwell, Jr., the vice chancellor and general counsel for Liberty, provided a declaration in support of the motion. Falwell's declaration states that Liberty is incorporated in Virginia and maintains its principal place of business in Virginia. Liberty has no employees in California, does not have an office or mailing address in California, does not own or lease any real property in California, is not registered or otherwise qualified to do business in California, and does not have an agent for service of process in California. Liberty does not pay any income, property, or use taxes to the state of California. Liberty does not manufacture any product that could find its way through the stream of commerce into California.

Falwell's declaration further states that Coach Pete Sundheim had been the head of football recruiting for Liberty in 2004, and he had direct personal contact with plaintiff and Lancaster. Sundheim lives and works in Virginia. Coach Ed Gomes, the director of spiritual development for Liberty's football team, also had personal contact with plaintiff and Lancaster. Gomes also lives and works in. Virginia.

Liberty also provided the declaration of Heather Sweitzer in support of the motion to quash service. Sweitzer's declaration stated that on April 21, 2004, she had been a student at Randolph Macon Women's College in Virginia. About 11:30 p.m., when she was socializing with friends at a bar, she saw plaintiff "engaged in a heated discussion" with Lancaster. About 11:45 p.m., she left the bar and saw plaintiff and Lancaster arguing outside the bar. Sweitzer, who had not consumed any alcohol that evening, offered to give plaintiff a ride back to the Liberty campus. Plaintiff accepted the offer, and Lancaster departed; Sweitzer did not see Lancaster again. Before leaving for the campus, plaintiff walked with Sweitzer and her friends to a store to purchase food, and then the group walked to a restaurant. On the way to the restaurant, they crossed railroad tracks; plaintiff asked if the tracks led to the Liberty campus. Sweitzer told plaintiff she thought they did, but she also told plaintiff that two students had died when they fell from a nearby railroad trestle. When the group arrived at the restaurant about 30 minutes after they had left Lancaster at the bar, plaintiff said he intended to stay outside to smoke marijuana. Sweitzer did not see plaintiff again, although she went outside to look for him.

Liberty also provided the declaration of Lancaster in support of the motion to quash service. Lancaster's declaration stated he had last seen plaintiff about 11:30 p.m. on April 21, 2004, when plaintiff left the bar with several young women. Lancaster estimated plaintiff had consumed 8 to 10 beers that night.

In opposition to the motion, plaintiff filed the declaration of Maria Roman, plaintiffs mother. Maria's declaration stated that Liberty's recruiting coordinator had come to Rialto, California, to recruit plaintiff to play football for Liberty, and Liberty offered plaintiff a football scholarship, which he accepted. Plaintiff executed the scholarship agreement and a revised scholarship agreement in California. Plaintiff has been a resident of California all his life. He is permanently disabled and unable to travel out of state to attend a lengthy trial. Maria stated she is plaintiffs primary caretaker and is unable to travel. All of plaintiffs medical providers are in California, and it would be difficult for his medical needs to be met in Virginia during a lengthy trial.

Plaintiff also filed the declaration of his attorney, Martin Cervantes. Cervantes's declaration stated he had received a letter from Liberty's insurance carrier denying plaintiffs claim on the basis that in Virginia, the doctrines of contributory negligence and assumption of the risk are complete bars to recovery. A copy of the letter was attached as an exhibit to the declaration.

Following a hearing, the trial court granted the motion on the ground of lack of personal jurisdiction.

C. Lancaster's Motion to Quash Service of Summons

Lancaster filed a motion to quash service of summons for lack of personal jurisdiction, or in the alternative, based on the doctrine of forum non conveniens.

In support of the motion, Lancaster filed a declaration that stated he had been a student at Liberty on April 21, 2004, and had been a citizen and resident of Virginia since April 19, 2006. He stated he had not lived in California since April 18, 2006, and he had no intention to live in California. He visited California only to spend holidays with his parents.

Plaintiff filed an opposition to the motion, supported by declarations similar to those filed in opposition to Liberty's motion.

Following a hearing, the trial court granted Lancaster's motion on the ground of forum non conveniens.

III. DISCUSSION

A. Liberty's Motion

Plaintiff contends the trial court erred in granting Liberty's motion to quash service of summons because Liberty purposefully availed itself of the privilege of conducting business in this state, and plaintiffs cause of action would not have arisen "but for" Liberty's contacts with this forum.

1. Standard of Review

When a defendant moves to quash service of summons for lack of specific jurisdiction, the plaintiff bears the initial burden of demonstrating, by a preponderance of the evidence, facts justifying the exercise of jurisdiction. Once the plaintiff meets this initial burden, the burden shifts to the defendant to show that the exercise of jurisdiction would be unreasonable. When the evidence is not in conflict whether jurisdiction exists is a question of law which this court reviews de novo. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062, 29 Cal.Rptr.3d 33, 112 P.3d 28 (Snowney).)

2. Analysis

California courts may exercise jurisdiction on any basis not inconsistent with the Constitutions of the United States and California. (Code Civ. Proc., § 410.10.) Federal constitutional due process requirements dictate that a foreign defendant must have "minimum contacts" with the forum state such...