30-2013-00647389

Motion by Defendant Brown for Order Vacating Default and Default Judgment:

The court grants Defendant’s motion.  Because the judgment is void for lack of personal jurisdiction against Defendant, the court hereby dismisses the action for lack of personal jurisdiction.

 

A.  Defendant’s Objections to Plaintiff’s Declaration

 

The court sustains Defendant’s objections to Plaintiff’s declaration and to Exs. 6, 6A, 7, and 10, on the grounds of hearsay and lack of foundation as to personal knowledge.

 

B.  Personal Jurisdiction

 

(1) Personal jurisdiction issue not waived

As a preliminary matter, although Plaintiff argues that Defendant waived the issue of personal jurisdiction because she did not file a motion to quash under Code Civ. Proc., § 418.10 at the same time as this motion to vacate, the notice of motion states that it is based on Section 418.10, among others [page 2, line 18 of renewed motion].  In addition, a nonresident defendant may challenge a default judgment for lack of personal jurisdiction under Code Civ. Proc., § 473, subd. (d) to set aside a void judgment, without also filing a motion to quash.  (See Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1251.)  Thus the personal jurisdiction issue is not waived.

 

(2) Personal jurisdiction generally

Plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.  (See Strathvale Holdings v. E.B.H.(2005) 126 Cal.App.4th 1241, 1250.)  Plaintiff must demonstrate by a preponderance of the evidence that all jurisdictional requirements are met.  (See Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.)  If Plaintiff establishes that Defendant has minimum contacts with the forum state, the burden shifts to Defendant to demonstrate that the exercise of jurisdiction would be unreasonable.   (See Stone v. Texas (1999) 76 Cal.App.4th 1043, 1048.)

 

Jurisdictional facts must be proved by competent evidence – that is, declarations by competent witnesses.  (SeeEvangelize China Fellowship, Inc. v. Evangelize china Fellowship (1983) 146 Cal.App.3d 440, 444.)

 

Here, of the two bases for personal jurisdiction, general and specific, Plaintiff alleges only specific jurisdiction exists.  To determine whether specific jurisdiction exists, courts consider the relationship among the defendant, the forum, and the litigation.  (Strathvale Holdings v. E.B.H., supra, 126 Cal.App.4th at 1251.)  “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of [the] defendant’s contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.”  (Ibid. [internal quotes and citations omitted].)

 

(3) No purposeful availment under the “effects test”

Plaintiff cites Calder v. Jones (1983) 465 U.S. 783 to argue that the court has personal jurisdiction over Defendant under the “effects test.”  The problem with Calder is that it does not address the difficulties of applying the effects test in the unique context of an internet website.

Pavlovich v. Superior Court (2002) 29 Cal.4th 262—the case relied upon by Defendant—does.  Pavlovich applies a sliding-scale analysis to determine the scope of jurisdiction based solely on internet use:

At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction.The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

(Pavlovich, supra, at 274 [emphasis added; internal citations omitted].))

A plaintiff’s alleged posting on a passive website is not by itself sufficient to subject her to jurisdiction in California; otherwise, “personal jurisdiction in Internet-related cases would almost always be found in any forum in the country.”  (Id. at 275.)  Because there was no evidence that the defendant’s website targeted California, that California residents visited the website, that the defendant knew the plaintiff’s identity or that the plaintiff’s primary place of business was California, or that the defendant expressly aimed his conduct to harm the motion picture industry in California or licensees of the plaintiff’s proprietary information in California, the California Supreme Court held there was insufficient evidence to support personal jurisdiction under the effects test.  (Id. at 274–277.)

Here, Defendant argues that the website is a passive website, and Plaintiff has offered no evidence to rebut this statement.  There is no competent evidence that Defendant’s website targeted California.  Plaintiff offers a website printout showing the number of California traffic the website receives (see Stokes Decl., Ex. 10), but the exhibit is inadmissible hearsay. The objections thereto were sustained. And although Plaintiff is a California resident and was featured on the website, Plaintiff offers no evidence showing Defendant knew he was a California resident.  In short, Plaintiff has not met his initial burden of showing purposeful availment by Defendant of forum benefitis.

 

Because Plaintiff has not established purposeful availment by Defendant, it is unnecessary to reach the second and third prongs of the test for specific personal jurisdiction.

 

As indicated, the motion is granted, the defaults are vacated and the case is dismissed for lack of jurisdiction.

 

Defendant shall give notice.