Case Number: SC120626 Hearing Date: June 04, 2014 Dept: P

TENTATIVE RULING – DEPT. P

JUNE 4, 2014 CALENDAR No: 1

SC120626 — ALL GLOBAL MEDIA v. HAMMERMAN, et al.

HAMMERMAN DEFENDANTS’ MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION

Evidentiary matters

Defendants’ six purported evidentiary objections to the opposition brief – some of which assert no less than nine grounds for objection – are meritless. The brief constitutes argument, not evidence, and is thus not subject to evidentiary objections.

Both of Defendants’ objections to the Stevens declaration are sustained. The evidence objected to is, clearly, hearsay.

Although numerous portions of the Ormond declaration are clearly inadmissible, Defendants interposed improper “shotgun” objections to the declaration, including but not limited to “vague and ambiguous” and “Evid. Code, §352.”

The practice of filing “‘blunderbuss objections to virtually every item of evidence submitted'” has been severely criticized as placing an unnecessary and undue burden on the courts. See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254, fn. 3, 256; see also, Reid v. Google (2010) 50 Cal.4th 512, 532. This criticism went unheeded by Defendants. In order to have a clear record on the matter, at this morning’s hearing, defense counsel are to orally assert Defendants’ evidentiary objections. Defense counsel should carefully consider which objections they wish to orally present to the Court.

All other evidence is admitted.

Merits

Plaintiffs, including lead plaintiff All Global Media (“AGM”), allege that numerous defendants made false representations to AGM’s clients about the quality of its retransmission royalties administration services. Plaintiffs FAC asserts eight claims for numerous business torts, including defamation, invasion of privacy (false light), intentional and negligent interference with contractual relations and prospective economic relations, and related claims.

The moving defendants, Edward Hammerman and his law firm (“Defendants”) are located in metropolitan Washington, DC; Plaintiffs allege that Defendants are business competitors who sought to disrupt AGM’s relationships with numerous clients so that Defendants could take away and acquire for itself those clients from Plaintiff. Defendants move to quash service of summons for lack of personal jurisdiction.

“California courts may exercise personal jurisdiction on any basis consistent with the Constitutions of California and the United States. Code Civ. Proc. Section 410.10. The exercise of jurisdiction over a nonresident defendant comports with these Constitutions ‘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.” Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (internal quotations omitted). “Under the minimum contacts test, ‘an essential criterion in all cases is whether the “quality and nature” of the defendant’s activity is such that it is “reasonable” and “fair” to require him to conduct his defense in that State.’ ” Pavlovich, 29 Cal.4th at 268. “The defendant’s ‘conduct and connection with the forum State’ must be such that the defendant ‘should reasonably anticipate being haled into court there.’ ” Sher v. Johnson (9th Cir.1990) 911 F.2d 1357, 1361, quoting World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297.

A court may exercise general or specific jurisdiction over a nonresident defendant. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445; Sher v. Johnson, 911 F.2d at 1361. A court may assert general jurisdiction over a non- resident defendant when the defendant’s activities in the forum state “are substantial … continuous and systematic.” Vons, 14 Cal.4th at 445 (internal quotation marks and citations omitted). Plaintiffs impliedly concede (as they should) that general jurisdiction is not properly exercised here.

Jurisdiction is specific when the defendant’s contacts with the state are not substantial, continuous and systematic, but “the defendant has sufficient contacts with the forum state in relation to the cause of action.” Sher v. Johnson, 911 F.2d at 1361. The purposeful availment requirement ensures a nonresident defendant will not be brought into court based on its “random, fortuitous or attenuated” contacts with the forum state. Burger King Corp., v. Rudzewicz (1985) 471 U.S. 462, 475. To determine whether specific jurisdiction exists, “courts consider the ‘ “relationship among the defendant, the forum, and the litigation.’ ” [Citations.] A court may exercise specific jurisdiction over a nonresident defendant only if: (1) ‘the defendant has purposefully availed himself or herself of forum benefits’ [citation]; (2) ‘the “controversy is related to or ‘arises out of’ [the] defendant’s contacts with the forum” ‘ [citations]; and (3) ‘ “the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’ ” ‘ [citations].” Pavlovich, 29 Cal.4th at 269.

When a nonresident defendant moves to quash service of process on jurisdictional grounds, the burden of proof is on the plaintiff to demonstrate facts justifying the court’s exercise of jurisdiction over the nonresident defendant. Vons, 14 Cal.4th at 449; Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 903. If the plaintiff meets the burden of establishing minimum contacts with the forum state, then the defendant must show that the exercise of jurisdiction would be unreasonable. Goehring at 903.

The question before the Court is whether it may exercise specific jurisdiction over Defendants. Our Supreme Court has summarized federal law in this area, stating that a nonresident defendant “still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits, and the controversy is related to or arises out of a defendant’s contacts with the forum …. [¶][or] has purposefully directed his or her activities at forum residents, or who has purposefully derived benefit from forum activities, or purposefully avail[ed himself or herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Vons, supra, 14 Cal.4th at 446 (internal quotation marks and citations omitted).
“In tort cases, the purposeful availment requirement for specific jurisdiction can be satisfied by the effects test, set out in Calder v. Jones (1984) 465 U.S. 783…. Under Calder, personal jurisdiction can be based upon: (1) intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered–and which the defendant knows is likely to be suffered–in the forum state. [Citation.]” Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1057 (all internal quotations omitted). See also, Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 113 (“If a defendant commits an act or omission outside the forum state with the intent to cause a tortious effect within the state, the state may exercise jurisdiction over the defendant as to any cause of action arising from the effects.”) (emphasis in original).

Our Supreme Court has stressed that effects in the forum state are not by themselves enough for personal jurisdiction; instead, there must be “additional evidence of express aiming or intentional targeting.” Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 273 (emphasis added). In sum, besides any effect or effects felt in the forum state, there must be “other evidence of express aiming at the forum state” to “establish[ ] purposeful availment under the effects test.” Id. at 277 (emphasis in original).

In other words, “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…. [Citations.] Instead, the plaintiff must also ‘point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum….’ [Citation.]” Pavlovich, supra, 29 Cal.4th at 270-271. Thus, “in order for California courts to properly exercise our specific jurisdiction, this state must have been the focal point of the tort and the brunt of the harm must have been felt here. (See Calder, supra, 465 U.S. at p. 789, 104 S.Ct. 1482; Pavlovich, supra, 29 Cal.4th at p. 270, 127 Cal.Rptr.2d 329, 58 P.3d 2.)” In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 122.

“If there is conflicting evidence about whether a nonresident defendant committed acts or omissions outside the state, intending to cause a tortious effect in California, then [the appellate court] appl[ies] the substantial evidence rule to determine the validity of the trial court’s finding of fact. On conflicting evidence, [the appellate court] must support the trial court’s resolution of the conflict, including any implied finding that acts and omissions were not committed outside the state with an intent to cause tortious effects in California.” In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 123.

The Court observes that neither side discussed, in their respective briefs, the opinion in Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd. (9th Cir.2000) 328 F.3d 1122. There, the plaintiff, a California company, sued a foreign corporation headquartered in London, England, alleging it had interfered with existing contracts and plaintiff’s prospective economic advantage by defaming plaintiff and urging other London-based companies not to do business with it. In requesting the federal district court in California to dismiss for lack of personal jurisdiction, the defendant argued all of the alleged conduct had occurred in London; the defendant had no contacts with California; and the foreseeable effect of its conduct on a California corporation was, by itself, insufficient to justify personal jurisdiction. The Ninth Circuit Court of Appeals rejected that argument and upheld the exercise of personal jurisdiction, concluding the alleged interference was intended to target a California resident.

Also, neither side mentioned, let alone discussed, another pertinent opinion, Bancroft & Masters, Inc. v. Augusta Nat’l Inc.(9th Cir.2000) 223 F.3d 1082, 1088. In Bancroft & Masters, Inc., the plaintiff was a small California company that had registered an Internet domain name. Bancroft & Masters, Inc., 223 F.3d at 1084. The Georgia-based defendant sent a letter to the official domain name registrar in Virginia, challenging the plaintiff’s use of that domain name. Id. at 1085. Subsequently, the plaintiff sought a declaratory judgment against the defendant in a California district court to establish ownership of the domain name. Id. The Ninth Circuit ultimately concluded that personal jurisdiction existed over the defendant, even though the letter was never sent to California. Id. at 1085, 1087–88. It reasoned that the letter was expressly aimed at California, because it individually targeted plaintiff’s business in California. Id. at 1088. This is because the letter triggered the registrar’s dispute resolution procedures, which forced plaintiff to either bring suit or lose control of its website. Id. at 1085, 1087. Thus, the letter was sent “for the very purpose of having [its] consequences felt” on the plaintiff’s business in California. Id. at 1088.

The Court will hear further argument this morning as to whether the admissible evidence is sufficient to constitute evidence of express aiming or intentional targeting, viz., evidence of purposeful availment. Pavlovich, supra, 29 Cal.4th at 273. Counsel are to be prepared to discuss Harris Rutsky & Co. Ins. Services, Inc. and Bancroft & Masters, Inc. The Court notes that if it concludes that Plaintiffs have not shown the requisite minimum contacts, the burden will not shift to Defendants to show that the exercise of jurisdiction would be unreasonable.

Depending on the Court’s ruling on the evidentiary objections and the arguments made this morning, the Court may issue one of the following rulings:

Motion is granted. Defendants are to serve and lodge a proposed order granting this motion and dismissing the complaint as to them, pursuant to Cal. Rules of Court, Rule 3.1312. They are to concurrently serve and lodge a proposed judgment of dismissal as to the complaint in as to them without prejudice to filing an action in the proper jurisdiction.

[OR]

Motion to quash is denied with prejudice. Defendants are to serve and file their response to the complaint within the time permitted by CCP 418.10(b). The Case Management Conference date is re-set to ________ 2014 ,at 8:30 a.m.

Other matters

The FAC (filed on January 15, 2014), like the initial complaint, names PBS and Marc Magnum as defendants. See, FAC, caption and paras. 8-9. However, Plaintiff filed a voluntary dismissal (without prejudice) as to these defendants on June 27, 2013. Was the inclusion of these two defendants in the FAC an editing error, or were Plaintiffs seeking to re-join PBS and Magnum as defendants in this action?

NOTICE

Defendants shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.