Burdick v. Superior Court

Filed 1/14/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DOUGLAS BURDICK,
Petitioner,
v. G049107
THE SUPERIOR COURT OF ORANGE (Super. Ct. No. 30-2012-00621436)
COUNTY,
OPINION
Respondent;
JOHN SANDERSON et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Franz E. Miller, Judge.
Petition granted in part and writ issued with directions.
Horvitz & Levy, David S. Ettinger, H. Thomas Watson; Stephens
Friedland, John B. Stephens and Laura A. Forbes for Petitioner.
No appearance for Respondent.
Dorsey & Whitney, Kent J. Schmidt, Lynnda A. McGlinn and Karen A.
Morao for Real Parties in Interest.
INTRODUCTION
In this writ proceeding, we address whether, in a lawsuit for defamation, a
nonresident defendant is subject to personal jurisdiction in California on the ground that,
while in his or her state of residence, the defendant posted (and removed) allegedly
defamatory statements about the plaintiff on the defendant’s publicly available Facebook
page.
We hold that posting defamatory statements about a person on a Facebook
page, while knowing that person resides in the forum state, is insufficient in itself to
create the minimum contacts necessary to support specific personal jurisdiction in a
lawsuit arising out of that posting. Instead, it is necessary that the nonresident defendant
not only intentionally post the statements on the Facebook page, but that the defendant
expressly aim or specifically direct his or her intentional conduct at the forum, rather than
at a plaintiff who lives there. We emphasize the exercise of personal jurisdiction must be
based upon forum-related acts that were personally committed by the nonresident
defendant, not upon the plaintiff’s contacts with the forum or acts committed by
codefendants or third parties.
The plaintiffs in this case—John Sanderson and George Taylor (together,
Plaintiffs)—sued Douglas Burdick, an Illinois resident, for defamation and other
intentional torts, based on an allegedly defamatory posting made by Burdick on his
personal Facebook page while he was in Illinois. The respondent court denied Burdick’s
motion to quash service of summons for lack of personal jurisdiction, and Burdick has
challenged that ruling by petition for writ of mandate or prohibition.
2
We conclude, based on the record before us, Plaintiffs did not meet their
burden of presenting facts demonstrating that Burdick’s conduct constituted minimum
contacts sufficient to create personal jurisdiction under the standards set forth by the
United States Supreme Court and California Supreme Court, as discussed in this opinion.
We therefore grant Burdick’s writ petition and direct the respondent court to vacate its
order denying Burdick’s motion to quash. Rather than direct the respondent court to
grant the motion to quash, however, we first give that court the opportunity to rule on
Plaintiffs’ request to conduct jurisdictional discovery.
ALLEGATIONS, JURISDICTIONAL FACTS,
AND PROCEDURAL HISTORY
I.
Allegations of the Complaint
Plaintiffs filed a verified complaint and a verified first amended complaint
(the Complaint), naming as defendants Nerium International, LLC (Nerium
International), Nerium Biotechnology, Inc. (Nerium Biotechnology), Nerium SkinCare,
1
Inc. (Nerium SkinCare), Jeff Olson, and Burdick. The Complaint asserted six causes of
action against Burdick: (1) libel per se (by Sanderson only); (2) slander per se (by Taylor
only); (3) defamation (by Plaintiffs); (4) intentional infliction of emotional distress (by
Plaintiffs); (5) negligent infliction of emotional distress (by Plaintiffs); and (6) invasion
of privacy (by Plaintiffs).
The Complaint alleged the following:
Nerium International and Nerium SkinCare are incorporated in Texas, and
Nerium Biotechnology is incorporated in Canada. The Nerium Entities are involved in
the research, development, advertising, marketing, and sale of a skin care product called
1
We refer to Nerium International, Nerium Biotechnology, and Nerium Skincare,
collectively as the Nerium Entities.
3
NeriumAD, the active ingredient of which is an extract of the nerium oleander plant. The
primary purpose of Nerium International is to market and coordinate the sales of
NeriumAD through “multi-level marketing,” a marketing strategy in which salespersons
are compensated not only for the sales they generate, but also for sales generated by other
salespersons whom they had recruited.
Olson is the chief executive officer of Nerium International, and Burdick is
“another high-level and highly compensated representative of Nerium International and is
the company’s Corporate Consultant.” Plaintiffs are physician-scientists and
entrepreneurs. They have, since November 2011, maintained a noncommercial Internet
blog Web site known as BareFacedTruth.com, which “discusses science and skin care”
and “is dedicated to providing educational material, including information and research,
relating to medical-scientific matters that are in the public interest, including skin care
science.”
In June 2012, Plaintiffs began to question the science behind NeriumAD
and published blog entries questioning its safety and efficacy and criticizing Nerium
International’s multilevel marketing organization. “In response to Plaintiffs’ questioning
of the science behind NeriumAD and criticisms of the Nerium organization, Defendants
engaged in a campaign of harassment and defamation against Plaintiffs to destroy their
reputations using false and misleading information.” As a precursor to this campaign,
Olson conducted a recorded teleconference aired to salespeople (called “Brand
Partners”), in which he referred to Plaintiffs as “blatant, jerk liars” (boldface omitted) and
stated, “wait till you see what we have heading your way. It’s—actually, I hate to say
this, but I’m going to really enjoy the day we put it out there, quite honestly” (boldface &
italics omitted).
In November 2012, Olson recorded and published on Nerium
International’s Web site a video recording in which he stated that an investigation had
“uncovered the fact that the blogger has had ‘multiple domestic violence issues.’”
4
Burdick, as his part of the campaign of harassment, in November 2012,
posted on his Facebook page an announcement that “more scandalous information would
be revealed regarding the ‘Blogging Scorpions.’” The Facebook posting announcement
stated that within a short period of time, new information would be posted on “‘[w]hy he
uses multiple social security numbers’ and ‘how many times he has been charged with
domestic violence.’” Burdick posted those statements on Facebook “in his capacity as
Corporate Consultant for Nerium International” and a person reading those statements
would reasonably understand they referred to Sanderson or Taylor.
II.
Motion to Quash Service of Summons
Burdick filed a motion to quash service of summons (the motion to quash),
based on lack of personal jurisdiction. With the motion to quash, Burdick submitted his
own declaration stating he is an independent contractor for Paradiselife, Inc., an Illinois
corporation with its principal place of business in Illinois, through which he provides
consulting services to Nerium International. Burdick declared he has been a resident of
Illinois since 1971. He has never lived in California; maintained an office or been
employed in California; had a bank account, safe deposit box, or mailing address in
California; owned or leased real property in California; had employees in California;
been a party to a contract with a person or entity in California; or held any licenses or
certifications issued by any governmental agency or unit in California. Burdick declared
he posted and later removed the allegedly defamatory Facebook posting from his
personal Facebook page while he was in the State of Illinois.
Plaintiffs filed opposition to the motion to quash, which included a
declaration (with exhibits) from Sanderson and a declaration from Plaintiffs’ counsel.
Sanderson declared that Burdick posted defamatory material on his “publicly-available
Facebook wall.” Among the exhibits attached to Sanderson’s declaration was a print
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copy of the allegedly defamatory Facebook posting made by Burdick. That posting did
not mention Sanderson or Taylor by name, but referred to a “Blogging scorpion, liar,
terrorist, pretencer, amateur, wanna-be, con artist.” The posting then stated: “BOY
DOES THIS ‘BLOGGING SCORPION’ HAVE A LOT TO HIDE! More to come
shortly about the Truth and Facts about this ‘Blogging Scorpion[]’, things like: [¶]
[(1)] Why he lost his medical license (yes we have the documents directly from the
Medical Board of California) [¶] [(2)] Why he personally uses multiple social security
numbers [¶] [(3)] How many times has he been charged with domestic violence [¶]
[(4)] Why he makes medical claims about his product that is not FDA approved (yes we
have the video of him making these medical claims publically) [¶] [(5)] And much much
more! [¶] Stay tuned as we reveal the ‘REAL’ truth behind this ‘Blogging Scorpion’.”
The respondent court issued a minute order denying the motion to quash.
After finding that all of Plaintiffs’ claims against Burdick arose out of the Facebook
posting, the respondent court concluded he was subject to personal jurisdiction under the
“‘effects’” test of Calder v. Jones (1984) 465 U.S. 783, 789 (Calder) and Pavlovich v.
Superior Court (2002) 29 Cal. 4th 262, 269 (Pavlovich).)
III.
Writ Proceedings
Burdick filed a petition for peremptory writ of mandate/prohibition to
challenge the respondent court’s order denying his motion to quash service of summons.
We summarily denied the writ petition. The California Supreme Court granted Burdick’s
petition for review and transferred the matter to this court with directions to vacate the
order denying mandate and to issue an order to show cause why the relief sought in
Burdick’s writ petition should not be granted in light of Walden v. Fiore (2014) 571 U.S.
__ [134 S. Ct. 1115] (Walden), which was decided after we denied Burdick’s writ
petition. This court issued an order to show cause with a briefing schedule.
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Burdick filed a verified supplemental writ petition, to which Plaintiffs filed
an unverified opposition. After Burdick filed a reply to Plaintiffs’ opposition to the
supplemental writ petition, oral argument was heard.
BURDEN OF PROOF AND STANDARD OF REVIEW
“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 defendant’s burden to demonstrate that the
exercise of jurisdiction would be unreasonable. [Citation.]” (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 449 (Vons); see DVI, Inc. v. Superior Court
(2002) 104 Cal. App. 4th 1080, 1090.) The plaintiff must “‘present facts demonstrating
that the conduct of defendants related to the pleaded causes is such as to constitute
constitutionally cognizable “minimum contacts.” [Citation.]’” (DVI, Inc. v. Superior
Court, supra, at pp. 1090-1091.) If a trial court denies a motion to quash service of
summons brought on the ground of lack of jurisdiction, the defendant “may petition an
appropriate reviewing court for a writ of mandate to require the trial court to enter its
order quashing the service of summons.” (Code Civ. Proc., § 418.10, subd. (c).)
When the evidence of jurisdictional facts is not in dispute, the issue
whether the defendant is subject to personal jurisdiction is a legal question subject to de
novo review. (Vons, supra, 14 Cal.4th at p. 449.) When evidence of jurisdiction is in
dispute, we accept the trial court’s resolution of factual issues, draw all reasonable
inferences in support of the trial court’s order, and review the trial court’s determination
of factual issues for substantial evidence. (Thomson v. Anderson (2003) 113 Cal. App. 4th
258, 266-267; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal. App. 4th 423,
434-435; DVI, Inc. v. Superior Court, supra, 104 Cal.App.4th at p. 1091.) “The ultimate
question whether jurisdiction is fair and reasonable under all of the circumstances, based
7
on the facts which are undisputed and those resolved by the court in favor of the
prevailing party, is a legal determination warranting our independent review.” (Integral
Development Corp. v. Weissenbach (2002) 99 Cal. App. 4th 576, 585.)
DISCUSSION
I.
General Principles of Personal Jurisdiction
California courts may exercise jurisdiction over nonresidents “on any basis
not inconsistent with the Constitution of this state or of the United States.” (Code Civ.
Proc., § 410.10.) The United States Constitution permits a state to exercise jurisdiction
over a nonresident defendant if the defendant has sufficient “minimum contacts” with the
forum such that “maintenance of the suit does not offend ‘traditional notions of fair play
and substantial justice.’ [Citations.]” (Internat. Shoe Co. v. Washington (1945) 326 U.S.
310, 316.) Personal jurisdiction may be either general or specific. (Vons, supra, 14
Cal.4th at p. 445.) A nonresident defendant is subject to the forum’s general jurisdiction
if the defendant’s contacts are “‘substantial . . . continuous and systematic.’” (Ibid.,
quoting Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445, 446.) Plaintiffs have
conceded Burdick is not subject to California’s general jurisdiction.
“The inquiry whether a forum State may assert specific jurisdiction over a
nonresident defendant ‘focuses on “the relationship among the defendant, the forum, and
the litigation.”’” (Walden, supra, 571 U.S. at p. __ [134 S.Ct. at p. 1121]; accord,
Pavlovich, supra, 29 Cal.4th at p. 269.) A nonresident defendant may be subject to
specific jurisdiction if three requirements are met: (1) the defendant has purposefully
availed itself of forum benefits with respect to the matter in controversy; (2) the
controversy is related to or arises out of the defendant’s contacts with the forum; and
(3) the exercise of jurisdiction would comport with fair play and substantial justice.
(Pavlovich, supra, 29 Cal.4th at p. 269; Vons, supra, 14 Cal.4th at pp. 446, 447.)
8
II.
May California Exercise Specific Personal Jurisdiction
over Burdick?
May specific jurisdiction be exercised over Burdick, an Illinois resident,
based on his conduct related to the lawsuit, that is, his posting of the allegedly
defamatory statements on his personal Facebook page? When, as in this case, intentional
torts are alleged, “[a] forum State’s exercise of jurisdiction over an out-of-state
intentional tortfeasor must be based on intentional conduct by the defendant that creates
the necessary contacts with the forum.” (Walden, supra, 571 U.S. at p. __ [134 S.Ct. at
p. 1123].)
A. The Effects Test
1. Calder
The respondent court concluded, and Plaintiffs argue, that Burdick is
subject to specific jurisdiction under the effects test. The starting point for understanding
the effects test is the United States Supreme Court decision in Calder, supra, 465 U.S.
783. In that case, Shirley Jones, a well-known actress living in California, brought a libel
suit in California against a reporter and an editor for an allegedly defamatory article
published in the National Enquirer, a national weekly publication with a circulation of
about 600,000 in California. (Id. at pp. 784-786.) Both the reporter and the editor
worked for the National Enquirer at its headquarters in Florida. (Id. at p. 785.) The
reporter and the editor moved to quash service of process on the ground neither had
sufficient minimum contacts with California. (Id. at pp. 786-787.)
The United States Supreme Court held that jurisdiction over the reporter
and the editor in California was proper “based on the ‘effects’ of their Florida conduct in
California.” (Calder, supra, 465 U.S. at p. 789.) Those effects were felt in California
9
because, the court explained, “[t]he 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 respondent’s emotional
distress and the injury to her professional reputation, was suffered in California.” (Id. at
pp. 788-789, fn. omitted.) “In sum,” the court concluded, “California is the focal point
both of the story and of the harm suffered.” (Id. at p. 789.) The court noted too the
intentional acts of the reporter and the editor “were expressly aimed at California” in that
they wrote or edited an article “they knew would have a potentially devastating impact
upon respondent” and “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.” (Id. at pp. 789-790.)
2. “Express Aiming” and Pavlovich
Courts have struggled with the import of Calder and have not applied the
effects test uniformly. (Pavlovich, supra, 29 Cal.4th at p. 270.) Most courts have agreed,
nonetheless, 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.” (Id. at pp. 270-271; see Bancroft & Masters, Inc. v.
Augusta Nat. Inc. (9th Cir. 2000) 223 F.3d 1082, 1087 [courts have recognized that
Calder “cannot stand for the broad proposition that a foreign act with foreseeable effects
in the forum state always gives rise to specific jurisdiction”].)
To narrow the potentially broad scope of Calder, courts have interpreted
the effects test as having an express aiming requirement and requiring the plaintiff to
show (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the
harm caused by that tort in the forum state such that the forum state was the focal point of
the plaintiff’s injury; and (3) the defendant expressly aimed the tortious conduct at the
10
2
forum state such that the forum state was the focal point of the tortious activity. (IMO
Industries, Inc. v. Kiekert AG (3d Cir. 1998) 155 F.3d 254, 265-266.) To satisfy the third
prong, the plaintiff must show “the defendant knew that the plaintiff would suffer the
brunt of the harm caused by the tortious conduct in the forum, and point to specific
activity indicating that the defendant expressly aimed its tortious conduct at the forum.”
(Id. at p. 266.)
In Pavlovich, the California Supreme Court addressed the meaning of the
Calder effects test and, citing IMO Industries, Inc. v. Kiekert AG and Bancroft &
Masters, Inc. v. Augusta Nat. Inc., concluded the test requires “evidence of express
aiming or intentional targeting” (Pavlovich, supra, 29 Cal.4th at p. 273), in addition to
“the defendant’s knowledge that his intentional conduct would cause harm in the forum”
(id. at p. 271). The plaintiff in Pavlovich alleged the defendant had misappropriated trade
secrets by posting on a Web site the source code of a program that would allow users to
circumvent a system used to encrypt and protect copyrighted materials on DVD’s and to
enable users to place decrypted materials from DVD’s onto computer hard drives or other
storage media. (Id. at pp. 266-267.) The California Supreme Court concluded the
defendant, an Indiana resident with no California contacts, was not subject to personal
jurisdiction in California because the only evidence in the record suggesting express
aiming was the defendant’s knowledge his conduct could harm industries centered in
California. (Id. at pp. 266, 278.)
3. Effects Test and the Internet-based Defamation
Although Pavlovich made “express aiming or intentional targeting”
(Pavlovich, supra, 29 Cal.4th at p. 273) part of California personal jurisdiction law, it
2
The Ninth Circuit of the United States Court of Appeals has formulated the test as
(1) the nonresident defendant committed an intentional act, (2) the defendant expressly
aimed that act at the forum state, and (3) the act caused harm that the defendant knew
likely would be suffered in the forum state. (Mavrix Photo, Inc. v. Brand Technologies,
Inc. (9th Cir. 2011) 647 F.3d 1218, 1228.)
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was not a defamation case. Courts in other jurisdictions, which have considered Calder
and the effects test in defamation actions arising out of Internet posts and advertising,
have held the “mere posting of information or advertisements on an Internet website does
not confer nationwide personal jurisdiction.” (Remick v. Manfredy (3d Cir. 2001) 238
F.3d 248, 259, fn. 3.) In Young v. New Haven Advocate (4th Cir. 2002) 315 F.3d 256,
263, the court explained: “When the Internet activity is, as here, the posting of news
articles on a website, . . . [w]e . . . ask whether the newspapers manifested an intent to
direct their website content—which included certain articles discussing conditions in a
[forum state] prison—to a [forum state] audience. As we recognized in ALS Scan[, Inc.
v. Digital Service Consultants (4th Cir. 2002) 293 F.3d 707], ‘a person’s act of placing
information on the Internet’ is not sufficient by itself to ‘subject[] that person to personal
jurisdiction in each State in which the information is accessed.’ [Citation.] Otherwise, a
‘person placing information on the Internet would be subject to personal jurisdiction in
every State,’ and the traditional due process principles governing a State’s jurisdiction
over persons outside of its borders would be subverted. [Citations.] Thus, the fact that
the newspapers’ websites could be accessed anywhere, including [the forum state], does
not by itself demonstrate that the newspapers were intentionally directing their website
content to a [forum state] audience. Something more than posting and accessibility is
needed to ‘indicate that the [newspapers] purposefully (albeit electronically) directed
[their] activity in a substantial way to the forum state . . .’ . . . . [Citation.] The
newspapers must, through the Internet postings, manifest an intent to target and focus on
[forum state] readers.”
Other courts have reached the same or a similar conclusion. (See, e.g.,
Herman v. Cataphora, Inc. (5th Cir. 2013) 730 F.3d 460, 465-466 [to create personal
jurisdiction, allegedly defamatory statements on Web site must have “focal point” in
forum state]; Mavrix Photo, Inc. v. Brand Technologies, Inc., supra, 647 F.3d at p. 1230
[California had jurisdiction because the subject of the defendant’s Web site was “the
12
California-centered celebrity and entertainment industries” and Web site advertisements
targeted California residents]; Johnson v. Arden (8th Cir. 2010) 614 F.3d 785, 796
[defamatory Internet posts did not confer Missouri jurisdiction because they did not focus
on that state]; DFSB Kollective Co. Ltd. v. Bourne (N.D.Cal. 2012) 897 F. Supp. 2d 871
[no California jurisdiction because the plaintiffs failed to show a substantial number of
Web site hits came from California and Web site advertisements did not target
California]; Pooka Pooka LLC v. Safari Beach Club LLC (N.D.Cal., Apr. 17, 2013,
No. C-12-03817 DMR) 2013 U.S.Dist. Lexis 56900, p. *12 [no California jurisdiction
because Web site advertisements did not target Californians]; Facebook, Inc. v.
Teachbook.com, LLC (N.D.Cal., May 3, 2011, No. CV 10-03654 RMW) 2011 U.S.Dist.
Lexis 48590, p. *7 [“The fact that an essentially passive Internet advertisement may be
accessible in the plaintiff’s home state without ‘something more’ is not enough to support
personal jurisdiction . . . .”]; Wilkerson v. RSL Funding, L.L.C. (Tex.App. 2011) 388
S.W.3d 668, 682 [“[The defendant]’s online postings, which were made available to
anyone interested in them, were not specifically directed towards Texas, and therefore do
not support exercising jurisdiction over this case.”]; Dailey v. Popma (2008) 191
N.C.App. 64, 71-74 [662 S.E.2d 12, 17-18] [following Young v. New Haven Advocate].)
As summed up in Gorman v. Jacobs (E.D.Pa. 2009) 597 F. Supp. 2d 541,
548: “Exercise of personal jurisdiction would also be proper over defendants who made
allegedly defamatory statements on the Internet if the content of the statements
themselves are directed into the forum. [Citation.] Simply (a) knowing that the plaintiff
is in the forum state, (b) posting negative statements about the plaintiff's forum-related
activities, and (c) referring to the forum in one’s writing will not suffice to satisfy the
Calder effects test.”
4. Walden
Recently, in Walden, supra, 571 U.S. __ [134 S. Ct. 1115], the United States
Supreme Court readdressed the personal jurisdiction analysis for intentional torts. In that
13
case, the plaintiffs, who were residents of California and Nevada, sued a Georgia police
officer in federal court in Nevada for an intentional tort based on actions undertaken by
the police officer while serving as a deputized Drug Enforcement Administration agent in
Georgia. (Id. at p. __ [134 S.Ct. at pp. 1119-1120].) At the Atlanta airport, the police
officer had seized cash carried by the plaintiffs while they were in transit from Puerto
Rico to Las Vegas. (Id. at p. __ [134 S.Ct. at pp. 1119-1120].) The police officer moved
the cash to a secured location, and, at some point, helped to draft an affidavit, which the
plaintiffs claimed was false, to show probable cause for forfeiture of the funds and
forwarded that affidavit to the United States Attorney’s Office in Georgia. (Id. at p. __
[134 S.Ct. at pp. 1119-1120].) All of the police officer’s actions took place in Georgia,
none took place in Nevada, where the plaintiffs filed suit, yet the Ninth Circuit Court of
Appeals upheld personal jurisdiction on the ground the police officer “‘expressly aimed’”
his submission of the false affidavit at Nevada, knowing that doing so would affect
persons with a “‘significant connection’” with that state. (Id. at p. __ [134 S.Ct. at
p. 1120].)
The United States Supreme Court held that due process did not permit the
court in Nevada to exercise personal jurisdiction over the police officer. (Walden, supra,
571 U.S. at p. __ [134 S.Ct. at p. 1121].) The court confirmed that “[f]or a State to
exercise jurisdiction consistent with due process, the defendant’s suit-related conduct
must create a substantial connection with the forum State.” (Id. at p. __ [134 S.Ct. at
p. 1121].) The court emphasized two concepts related to this principle. “First, the
relationship must arise out of contacts that the ‘defendant himself’ creates with the forum
State.” (Id. at p. __ [134 S.Ct. at pp. 1121-1122].) The plaintiff’s contacts with the
forum “cannot be ‘decisive.’” (Id. at p. __ [134 S.Ct. at p. 1122].) “Second, our
‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself,
not the defendant’s contacts with persons who reside there.” (Id. at p. __ [134 S.Ct. at
14
p. 1122].) The defendant’s conduct “must form the necessary connection with the forum
State that is the basis for its jurisdiction over him.” (Id. at p. __ [134 S.Ct. at p. 1122].)
The Walden court explained those principles apply when intentional torts
are involved and used Calder as an illustration of such application. (Walden, supra, 571
U.S. at p. __ [134 S.Ct. at p. 1123].) After reviewing the nature of the contacts in Calder,
the Supreme Court concluded: “The crux of Calder was that the reputation-based
‘effects’ of the alleged libel connected the defendants to California, not just to the
plaintiff. The strength of that connection was largely a function of the nature of the libel
tort. However scandalous a newspaper article might be, it can lead to a loss of reputation
only if communicated to (and read and understood by) third persons. [Citations.]
Accordingly, the reputational injury caused by the defendants’ story would not have
occurred but for the fact that the defendants wrote an article for publication in California
that was read by a large number of California citizens. Indeed, because publication to
third persons is a necessary element of libel [citation], the defendants’ intentional tort
actually occurred in California. [Citation.] In this way, the ‘effects’ caused by the
defendants’ article—i.e., the injury to the plaintiff’s reputation in the estimation of the
California public—connected the defendants’ conduct to California, not just to a plaintiff
who lived there. That connection, combined with the various facts that gave the article a
California focus, sufficed to authorize the California court’s exercise of jurisdiction.”
(Walden, supra, at p. __ [134 S.Ct. at pp. 1123-1124].) The defendants in Calder
“‘expressly aimed’” their intentional conduct at California because they knew the
National Enquirer had its largest circulation in California and the article would “‘have a
potentially devastating impact’ there.” (Walden, supra, at p. __, fn. 7 [134 S.Ct. at
p. 1124, fn. 7].)
The Supreme Court in Walden applied those principles to conclude the
police officer lacked the minimal contacts with Nevada to support personal jurisdiction.
(Walden, supra, 571 U.S. at p. __ [134 S.Ct. at p. 1124].) It was undisputed that no part
15
of the defendant’s course of conduct occurred in Nevada; the defendant “never traveled
to, conducted activities within, contacted anyone in, or sent anything or anyone to
Nevada.” (Id. at p. __ [134 S.Ct. at p. 1124].) “In short, when viewed through the proper
lens—whether the defendant’s actions connect him to the forum—petitioner formed no
jurisdictionally relevant contacts with Nevada.” (Id. at p. __ [134 S.Ct. at p. 1124].)
B. Application of the Effects Test of Calder, Pavlovich, and Walden
Walden is not a defamation case, and the Supreme Court made clear that
commission of intentional torts via the Internet presented some “very different questions”
which it left “for another day.” (Walden, supra, 571 U.S. at p. __, fn. 9 [134 S.Ct. at
p. 1125, fn. 9].) Nonetheless, Walden’s essential teachings and its interpretation of
Calder directly apply to this case. Walden teaches that the correct jurisdictional analysis
focuses on (1) the defendant’s contacts with the forum, not with the plaintiff, and
(2) whether those contacts create “‘“the relationship among the defendant, the forum, and
the litigation”’” necessary to satisfy due process. (Walden, supra, at p. __ [134 S.Ct. at
p. 1126].) And, “[t]he proper question is not where the plaintiff experienced a particular
injury or effect but whether the defendant’s conduct connects him to the forum in a
meaningful way.” (Id. at p. __ [134 S.Ct. at p. 1125].)
It is undisputed Burdick has no direct contacts with California. He is an
Illinois resident, has never resided or worked in California, has never owned or leased
property in the state, and, by all accounts, has been in the state only twice. He is a
consultant for Nerium International, a Texas corporation which markets products
throughout the country. The only conduct which might connect Burdick in a meaningful
way with California was the allegedly defamatory posting on his Facebook page. As the
trial court found, all of Plaintiffs’ claims arise out of that posting.
Plaintiffs assert the facts supporting jurisdiction are not limited to the
Facebook posting because “[t]here was ample evidence that Burdick’s conduct was part
16
of a far broader and more concerted scheme” and Burdick was “a principal participant in
this plan to injure Californians.” But in determining personal jurisdiction, “[e]ach
defendant’s contacts with the forum state must be assessed individually” (Calder, supra,
465 U.S. at p. 790; see HealthMarkets, Inc. v. Superior Court (2009) 171 Cal. App. 4th
1160, 1167) and “[w]here conspiracy is alleged, an exercise of personal jurisdiction must
be based on forum-related acts that were personally committed by each nonresident
defendant” (CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal. App. 4th 1101,
1118; see In re Automobile Antitrust Cases I & II (2005) 135 Cal. App. 4th 100, 113
[“Personal jurisdiction must be based on forum-related acts that were personally
committed by each nonresident defendant. The purposes and acts of one party—even an
alleged coconspirator—cannot be imputed to a third party to establish jurisdiction over
the third party defendant.”]). Thus, we consider only acts committed by Burdick
personally in determining whether he is subject to jurisdiction in California.
The question under Walden is whether Burdick’s “suit-related conduct”—
the posting and removal of the allegedly defamatory Facebook post—created a
“substantial connection” between Burdick and California. (Walden, supra, 571 U.S. at
p. __ [134 S.Ct. at p. 1121].) It is undisputed Burdick posted and removed that Facebook
posting while he was in his home state of Illinois. Although it can be inferred from the
posting itself that Burdick knew Plaintiffs resided in California and understood they
would suffer any injury here, his knowledge that the posting could harm California
residents is not enough in itself to support jurisdiction. (Pavlovich, supra, 29 Cal.4th at
p. 278.) The substantial connection required by Walden is not created by Plaintiffs
having suffered injury in California: “The crux of Calder was that the reputation-based
‘effects’ of the alleged libel connected the defendants to California, not just to the
plaintiff.” (Walden, supra, at p. __ [134 S.Ct. at pp. 1123-1124].)
17
We agree with those cases holding that merely posting on the Internet
negative comments about the plaintiff and knowing the plaintiff is in the forum state are
insufficient to create minimum contacts. Calder, Pavlovich, and Walden emphasize the
difference between conduct directed at the plaintiff and conduct directed at the forum
state itself: Those cases require, in addition to intentional conduct causing harm to a
forum resident, evidence the nonresident defendant expressly aimed or intentionally
targeted his or her intentional conduct at the forum state. Plaintiffs did not produce
evidence to show Burdick’s personal Facebook page or the allegedly defamatory posting
was expressly aimed or intentionally targeted at California, that either the Facebook page
or the posting had a California audience, that any significant number of Facebook
“friends,” who might see the posting, lived in California, or that the Facebook page had
advertisements targeting Californians. Sanderson declared that Burdick’s Facebook page
was “publicy-available,” but that fact would mean it would have been less likely Burdick
had intentionally targeted California as opposed to any other jurisdiction.
Plaintiffs argue Calder remains controlling law and, although it was
decided before the advent of the Internet, is dispositive. Walden did not overrule Calder;
however, as the Walden court explained, key to understanding Calder is the defamatory
article had a “California focus” in that it was specifically about an actress living in
California with a California-based movie and television career, and that the reporter and
editor knew the article would be published in a magazine having its largest circulation in
California. (Walden, supra, 571 U.S. at p. __ & fn. 7 [134 S.Ct. at pp. 1123, 1124 &
fn. 7].) The Walden court explained that, based on those facts, the Calder court
concluded the reporter and the editor “‘expressly aimed’” their intentional conduct at, and
knew the article would have a potentially devastating impact in, California. (Walden,
supra, at p. __, fn. 7 [134 S.Ct. at p. 1124, fn. 7].)
18
Such facts are absent here. Burdick declared he made the allegedly
defamatory posting on his personal Facebook page while he was in Illinois. Neither
Burdick’s Facebook page nor the allegedly defamatory posting had a California focus
like the defamatory article in Calder. The posting was about NeriumAD—a product sold
throughout the country—and its critics. No evidence was presented that Burdick’s
Facebook page had its widest circulation, i.e., the greatest number of Facebook friends, in
California, that Burdick expressly aimed his intentional conduct at California, or that
Burdick knew the posting would cause harm connecting his conduct to California and not
only to Plaintiffs.
The respondent court found Calder supported the exercise of personal
jurisdiction over Burdick because “in the electronic age, posting on a website is
analogous to publishing in a newspaper.” But the court’s analogy was incomplete: It did
not take into account the salient facts supporting the conclusion in Calder that the
reporter and the editor expressly aimed their conduct at California. In Calder, it was not
the publication of the defamatory article in the National Enquirer that created jurisdiction
in California. Instead, it was intentional conduct by the reporter and the editor, combined
with their knowledge that the defamatory article would be published in a newspaper that
had its greatest circulation in California, that created jurisdiction.
The respondent court mistakenly assumed that posting of information on
the Internet with knowledge the posting might harm forum residents satisfied the express
aiming requirement without evidence establishing the posting focused on California and
was expressly aimed or intentionally targeted at California. Plaintiffs did not produce
evidence to show the allegedly defamatory Facebook posting, which concerned critics of
a product sold in all 50 states, substantially connected Burdick to California. Plaintiffs
did not produce evidence that Burdick expressly aimed or intentionally targeted his
intentional conduct at California, rather than at them personally, and therefore failed to
19
meet their burden of demonstrating facts justifying the exercise of personal jurisdiction
over Burdick.
C. Analogous Out-of-state Cases
Out-of-state cases applying the effects test to Internet postings consistently
support our conclusion. An analogous case is Griffis v. Luban (Minn. 2002) 646 N.W.2d
527 (Griffis), which was cited with approval in Pavlovich. In Griffis, supra, 646 N.W.2d
at pages 530 and 535, the defendant, a Minnesota resident, posted, on an Internet
newsgroup, messages that allegedly defamed the plaintiff, an Alabama resident. The
plaintiff sued the defendant for defamation in Alabama state court and obtained a default
judgment against her. (Id. at p. 530.) The defendant ultimately brought a motion in
Minnesota state court to vacate the judgment, and the plaintiff brought a cross-motion to
enforce it. (Id. at p. 531.) The trial court denied the motion to vacate the judgment and
ordered it be given full faith and credit. (Ibid.)
The Minnesota Supreme Court reversed, concluding the Calder effects test
required, in addition to the defendant’s knowledge the defendant’s allegedly tortious
conduct would cause harm to the plaintiff in the forum, that the plaintiff show the
defendant expressly aimed the tortious conduct at the forum. (Griffis, supra, 646 N.W.2d
at pp. 534, 535.) Although the record supported the conclusion the defendant’s
statements were “intentionally directed” at the plaintiff, whom the defendant knew to be
an Alabama resident, the evidence did not demonstrate the defendant’s statements were
“‘expressly aimed’” at the State of Alabama. (Id. at p. 535.) Significant to the court’s
reasoning was evidence establishing the newsgroup on which the defendant posted the
message was not targeted at the State of Alabama or an Alabama audience, but “was
organized around the subjects of archeology and Egyptology, not Alabama or the
University of Alabama academic community” and its readers “most likely would be
spread all around the country—maybe even around the world—and not necessarily in the
20
Alabama forum.” (Id. at pp. 535-536.) Thus, “[t]he fact that messages posted to the
newsgroup could have been read in Alabama, just as they could have been read anywhere
in the world, cannot suffice to establish Alabama as the focal point of the defendant’s
conduct.” (Id. at p. 536.)
In this case, while the allegedly defamatory Facebook posting could be read
as being expressly aimed at Plaintiffs, whom Burdick knew to be California residents,
Plaintiffs did not present evidence that the Facebook page or the posting were directed at
the State of California or a California audience. The readers of the allegedly defamatory
Facebook posting “most likely would be spread all around the country—maybe even
around the world—and not necessarily in the [California] forum.” (Griffis, supra, 646
N.W.2d at pp. 535-536.)
Also analogous is Giduck v. Niblett (Colo.Ct.App. 2014) __ P.3d __ [2014
Colo.App. Lexis 1088], in which the plaintiffs sued the defendants for defamation based
on various Internet postings made by the defendants on several Web sites. None of the
defendants was a Colorado resident, and the defendants’ only relationship with the state
was the effects of the Internet postings. (Id. at p. __ [2014 Colo.App. Lexis 1088 at
pp. **2-**3].) The Colorado Court of Appeals held the plaintiffs failed to make a prima
facie showing of specific personal jurisdiction. (Id. at p. __ [2014 Colo.App. Lexis 1088
at p. **15].) The defendants’ knowledge that the Internet postings would cause harm to
Colorado residents was insufficient to establish personal jurisdiction, and the plaintiffs
did not allege the statements posted by the defendants were specifically directed at
Colorado. (Id. at p. __ [2014 Colo.App. Lexis 1088 at pp. **15-**16].) Instead, the
defendants’ Internet statements were distributed “‘as widely as possible.’” (Id. at p. __
[2014 Colo.App. Lexis 1088 at p. **16].) Central to the court’s conclusion, the plaintiffs
had failed to produce evidence that the persons and institutions, to whom or which the
defendants’ statements were directed, resided or were located in Colorado: The
defendants’ various Web sites did not focus on Colorado and therefore did not provide
21
sufficient minimum contacts to subject the defendants to jurisdiction in that state. (Id. at
p. __ [2014 Colo.App. Lexis 1088 at pp. **16-**17].)
In this case, there was no evidence Burdick’s Facebook page was focused
on California, the allegedly defamatory posting was directed specifically at California
residents, or that the persons or institutions, to whom or which the posting was directed—
i.e., Burdick’s Facebook friends—resided in California.
In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc.
(7th Cir. 2014) 751 F.3d 796 (Advanced Tactical), the Seventh Circuit Court of Appeals
addressed some of the questions regarding the Internet left unanswered by Walden. In
Advanced Tactical, an Indiana company brought a lawsuit in Indiana against a
nonresident corporation for trademark infringement. (Advanced Tactical, supra, at
pp. 798-799.) The district court concluded the exercise of personal jurisdiction over the
defendant was proper because the defendant (1) sent misleading “email blasts” to a list
that included Indiana residents, (2) maintained an interactive Web site available to
Indiana residents, and (3) placed customers on its e-mail list when they made a purchase.
(Id. at p. 801.) The Seventh Circuit Court of Appeals reversed, concluding those contacts
did not support personal jurisdiction in Indiana. (Id. at pp. 798, 803.) Maintaining an
e-mail list of customers and sending e-mail blasts to them did not show a relation
between the defendant and Indiana because “[t]he connection between the place where an
email is opened and a lawsuit is entirely fortuitous.” (Id. at p. 803.) “It may be different
if there were evidence that a defendant in some way targeted residents of a specific state,
perhaps through geographically-restricted online ads. But in such a case the focus would
not be on the users who signed up, but instead on the deliberate actions by the defendant
to target or direct itself toward the forum state.” (Ibid.) The Seventh Circuit concluded
the defendant’s interactive Web site did not show the defendant had formed a contact
with the forum state. (Ibid.)
22
In this case, Burdick’s “publicly-available Facebook wall” may be
considered to be similar to an interactive Web site. But here, as in Advanced Tactical, no
evidence was presented that Burdick’s Facebook “wall” formed a contact with California.
No evidence was presented to show Burdick’s Facebook page or the allegedly
defamatory posting was geographically restricted or targeted California residents.
In Broadvoice, Inc. v. TP Innovations LLC (D.Mass. 2010) 733 F. Supp. 2d
219, 221-222 (Broadvoice), the plaintiffs, a Massachusetts Internet and telephone service
provider and two of its executives, sued Texas defendants—a disgruntled subscriber of
the provider and his defunct corporation—in Massachusetts. The plaintiffs alleged
defamation, trade disparagement, and intentional infliction of emotional distress arising
out of postings made by the defendants on the Web site they created as a public forum for
subscribers to air their grievances. (Id. at pp. 221, 222.) The defendants posted
unflattering comments about the plaintiffs, and the Web site included an open letter to the
provider, accusing it of illegal business practices. (Id. at p. 222.) The district court
granted the defendants’ motion to dismiss for lack of personal jurisdiction. (Id. at
p. 227.)
After discussing Calder, the district court in Broadvoice concluded: “This
case does not square with Calder. [The] defamatory website was aimed at Massachusetts
only in the sense that it could be accessed by Massachusetts residents (along with the rest
of the world). [The defendants] did nothing to incite residents of Massachusetts—as
opposed to the world at large—to take up arms against [the plaintiff service provider].”
(Broadvoice, supra, 733 F.Supp.2d at p. 226.) In this case too, the record before us
shows the allegedly defamatory posting on Burdick’s Facebook page was aimed at
California “only in the sense that it could be accessed by [California] residents (along
with the rest of the world).” (Ibid.)
In Farquharson v. Metz (D.Mass., July 30, 2013, No. 13-10200-GAO)
2013 U.S.Dist. Lexis 106374, pages *5-*8, the district court concluded the defendant’s
23
Facebook postings did not create personal jurisdiction in Massachusetts. The parties
disputed whether the defendant had any Facebook friends in Massachusetts. (Id. at
p. *5.) The court distinguished Calder on the ground the defendants in Calder could
reasonably anticipate being haled into court in California because they wrote for a
publication with a circulation of over 600,000 in that state. (Farquharson v. Metz, supra,
2013 U.S. Dist. Lexis 106374 at p. *6.) “By contrast, [the defendant] posted content that
could be seen by any of her Facebook ‘friends,’ and perhaps by ‘friends of friends’ as
[the plaintiff] alleges, but she did not take any additional steps to specifically aim content
at any Massachusetts residents.” (Ibid.) On the record presented to us, the same can be
said of Burdick’s allegedly defamatory Facebook posting.
Plaintiffs cite Edozien v. XS Micro, LLC (Mass.Super.Ct. 2014) 32
Mass.L.Rptr. 23 (Edozien), as supporting the exercise of personal jurisdiction over
Burdick. The court in Edozien, after reviewing Walden, confirmed its prior order
denying the defendants’ motion to dismiss for lack of personal jurisdiction. The court
found that “posting defamatory content on the internet, which specifically names a
Massachusetts resident and his company, satisfies the minimum contacts analysis for the
proper exercise of personal jurisdiction.” (Edozien, supra, 32 Mass.L.Rptr. 23.)
We disagree with Edozien, which, we believe, misapplies the law. The
Edozien court relied on Abiomed, Inc. v. Turnbull (D.Mass. 2005) 379 F. Supp. 2d 90, 96,
but that case does not support the proposition that posting defamatory information on the
Internet alone supports jurisdiction. (Edozien, supra, 32 Mass.L.Rptr. 23.) In Abiomed,
Inc. v. Turnbull, the defendant had made trips and telephone calls to Massachusetts,
during which he allegedly obtained confidential information about the plaintiff, a
Massachusetts company, and the dissemination of that information became the basis for
the plaintiff’s claims. (Abiomed, Inc. v. Turnbull, supra, at pp. 94-95.) In his Internet
postings, the defendant claimed to have obtained inside information about the plaintiff.
(Id. at p. 94.) The defendant was aware those Internet postings were being read by
24
Massachusetts residents and, in several instances, directed to those residents. (Id. at
p. 95.) The plaintiff sued the defendant for misappropriation and defamation, based on
the trips into Massachusetts and the Internet postings. (Id. at p. 94.) The district court
denied the defendant’s motion to dismiss for lack of personal jurisdiction because the
defendant intentionally directed his postings at the plaintiff and to an audience of
Massachusetts residents. (Id. at pp. 95-96.)
III.
Discovery
Plaintiffs argue that if we grant Burdick’s writ petition, we should allow
them to conduct discovery related to the issue of personal jurisdiction. In opposing
Burdick’s motion to quash service of summons, Plaintiffs made the same request of the
respondent court, which had no reason to consider the request because it denied the
motion to quash.
A trial court has discretion to continue the hearing on a motion to quash
service of summons for lack of personal jurisdiction to allow the plaintiff to conduct
discovery on jurisdictional issues. (HealthMarkets, Inc. v. Superior Court, supra, 171
Cal.App.4th at p. 1173.) In light of the issues presented by this writ proceeding and our
resolution of them, we conclude the respondent court should be given the opportunity to
consider Plaintiffs’ request for discovery. Any discovery must be limited to the issue of
specific personal jurisdiction based on the required minimum contacts we have identified
in this opinion as relevant to the jurisdictional analysis.
Burdick has advised us of a recent opinion, Young v. Daimler AG (2014)
228 Cal. App. 4th 855, which he contends supports denial of jurisdictional discovery. In
Young, the Court of Appeal concluded that the plaintiffs had waived any issues regarding
inadequate discovery by failing to raise them in the trial court. (Id. at p. 867, fn. 7.)
Here, Plaintiffs timely requested jurisdictional discovery in the respondent court. Also,
25
in Young, the Court of Appeal concluded discovery likely would not have led to the
production of facts establishing general jurisdiction over the defendant. (Ibid.) We
cannot reach the same conclusion at this stage as to specific jurisdiction over Burdick.
DISPOSITION AND ORDER
Burdick’s petition for writ of mandate is granted in part. Let a writ of
mandate issue directing the respondent court to (1) vacate its order denying Burdick’s
motion to quash service of summons, and (2) rule on Plaintiffs’ request to conduct
jurisdictional discovery. If the court denies the request for discovery, then the court must
enter an order granting the motion to quash. If the court grants the request for discovery,
the court must consider any additional, relevant evidence submitted and rule on the
motion to quash based on the entire factual record and in light of this opinion. The order
to show cause is discharged. Burdick is entitled to recover his costs incurred in this writ
proceeding.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.
26