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EFF/Pavlovich 1st Petition to Quash Service, CA Appeals Courtin DVD-CCA v. McLaughlin, Pavlovich, et al. (Sep. 11, 2000)Appellate Court No. H021961
COURT OF APPEAL OF THE STATE OF CALIFORNIA
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MATTHEW PAVLOVICH, |
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Sixth Appellate District |
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Petitioner. |
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vs. |
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Related Appeal Pending: |
SUPERIOR COURT OF THE STATE OF
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Respondent. |
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Trial Judge: Hon. William J. Elfving |
DVD COPY CONTROL ASSOCIATION, INC., |
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Real Party in Interest. |
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PETITION FOR WRIT OF MANDATE TO COMPEL TRIAL
COURT TO QUASH SERVICE OF PROCESS, MEMORANDUM
OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
(APPENDIX OF EXHIBITS UNDER SEPARATE COVER)
ALLONN E. LEVY (Bar No. 187251)
HUBER & SAMUELSON APC
210 North Fourth Street, Suite 400
San Jose, CA 95112
Telephone: (408) 295-7034
Facsimile: (408) 295-5799
Attorneys for Petitioner
Matthew Pavlovich
TABLE OF CONTENTS
Title
Page
TABLE OF AUTHORITIES......
I. INTRODUCTION......
II. PETITION FOR WRIT OF MANDATE......
III. VERIFICATION......
IV. MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PETITION FOR WRIT OF MANDATE......
A. Introduction......
1. Question Presented:......
2. Short Answer:......
B. Nature Of Action......
1. Situs and Identification of Parties......
2. Summary Of Facts Re Jurisdiction......
C. Summary Of Argument......
D. Because California lacks personal jurisdiction over
petitioner Pavlovich, this court should intervene and
issue the requested relief......
1. Standard of Review......
2. The court lacks personal jurisdiction over defendant PAVLOVICH......
a. General Jurisdiction Is Absent In This Case......
b. Specific Jurisdiction Is Similarly Absent In This Case......
(1) PAVLOVICH has had no
purposeful contact with
California and has not
purposefully availed himself of
the benefits of the forum state ......
(2) The Claim does not arise from
PAVLOVICH's forum-related
activities......
(3) Exercise of jurisdiction would not
be reasonable in this case......
V. CONCLUSION......
ENDNOTES
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Bancroft & Masters v. Augusta Nat'l Inc.,
(9th Cir. 2000) __f.3d __ ......
Burger King v. Rudzewicz
(1985), 471 U.S. 462 ......
Calder v. Jones, (1984) 465 U.S. 783 ......
Gordy v. Daily News, (9th Cir. 1996) 95 F.3d 829 ......
Hanson v. Denckla, (1958), 357 U.S. 235 ......
Helicopteros Nacionales de Columbia v. Hall
(1984), 466 U.S. 408......
International Shoe Co. v. Washington
(1945) 326 U.S. 310......
Panavision International, L.P. v. Toeppen
(9th Cir. 1998) 141 F.3d 1316......
Pennoyer v. Neff, (1877) 95 U.S. 714 ......
Perkins v. Benguet Mining Consolidated Mining Co.,
(1952) 342 U.S. 437......
Reno v. American Civil Liberties Union,
(1997) 521 U.S. 844......
World-Wide Volkswagen Corp. v. Woodson,
(1980), 444 U.S. 286 ......
STATE CASES
Brown v. Watson (1989), 207 Cal.App.3d 1306 ......
Universal City Studios Inc., et al. v. Hughes
Case No. 300CV721 RNC, (D.Ct) ......
C.C.P.§418.10......
By this verified petition, Petitioner alleges:
1. Related Appeal: Defendant and Appellant Andrew
Bunner has filed an appeal in this Court. The appeal seeks review of the
lower Court's decision to grant a preliminary injunction against Mr.
Bunner and others in this action (DVD Copy Control Association, Inc. v.
Andrew Bunner, Superior Court Case No. CV-786804, Appellate Court
Case no. H021153).
2. Petitioner, MATTHEW PAVLOVICH (hereafter
"PAVLOVICH") is a defendant in the action hereinafter described and is a
party beneficially interested herein.
3. Respondent is the Superior Court of Santa Clara County
(hereafter "Respondent"); (Superior Court Case No. CV786804).
4. Real party in interest, DVD Copy Control Association Inc.
(Hereafter "Real Party" or "DVD CCA") is the plaintiff in the action
hereinafter described and is a party beneficially interested in this
proceeding.
5. On December 27, 1999, Real Party in Interest, DVD CCA, filed
in Respondent Court against this Petitioner, as defendant, a complaint
numbered CV786804 alleging a single cause of action - misappropriation of
trade secrets (Civ.Code §3426 et seq.). The trade secret misappropriation
cause of action is based on the allegation that Petitioner republished
information that is alleged to have been misappropriated by a third party
and repeatedly republished throughout the Internet. Petitioner is one of
some 521 named and Doe defendants who have been sued for allegedly
republishing this information on the Internet. Numerous other publishers
of the same information have not been sued. Plaintiff and real party in
interest is a not-for-profit trade association whose sole purpose is to
license the information known as the Content Scrambling System or
"CSS". Real party in interest alleges that portions of its CSS Technology
were misappropriated by a third party and partially incorporated into a
new technology called DeCSS. Real party in interest alleges that after the
third party creator of DeCSS posted DeCSS on the Internet, Petitioner and
other defendants discovered the information posted on the Internet, and
themselves further republished the information on various Internet web
sites. A true and correct copy of DVD CCA's complaint is included as
"Exhibit A" of the separately bound appendix of exhibits
6. Petitioner made no general appearance in Respondent Court.
Rather, on June 6, 2000, Petitioner appeared specially in Respondent
Court (pursuant to the provisions of §418.10 of the Code of Civil
Procedure) by filing a motion to quash service of summons on the
grounds that the Respondent Court lacked jurisdiction of the person of
the defendant. A true and correct copy of Petitioner's Proof of Service,
Notice of Motion, Points and Authorities in Support of Motion,
Declaration of Allonn E. Levy in support of Motion, and Declaration of
Matthew Pavlovich in Support of Motion to Quash Service of Process is
included as "Exhibit B"of the separately bound appendix of exhibits filed
concurrently herewith, and explicitly made a part hereof by reference.
7. Following a stipulated jurisdictional deposition and
document production, on August 18, 2000, Real Party in Interest filed its
opposition papers to Petitioner's motion. A true and correct copy of Real
Party in Interest's opposing papers, which include Points and Authorities
in Opposition to Motion to Quash Service and the Declaration of
Jonathan S. Shapiro in Opposition to Motion to Quash Service, is
included as "Exhibit C" of the separately bound appendix of exhibits filed
concurrently herewith, and explicitly made a part hereof by reference.
8. On August 22, 2000, Petitioner herein filed his reply papers
in response to DVD CCA's opposition. A true and correct copy of
Petitioner's Reply Brief in Support of Motion, Reply declaration of Allonn
E. Levy in Support of Motion, and Objections to Evidence Submitted by
Plaintiff is included as "Exhibit D"of the separately bound appendix of
exhibits filed concurrently herewith, and explicitly made a part hereof by
reference.
9. A hearing was held by Respondent Court on August 29,
2000 at approximately 9:00 a.m. in Department 2 of the Santa Clara County
Superior Court. An order denying Petitioner's motion to quash service of
summons for lack of jurisdiction was served by mail on all parties on
August 30, 2000. A true and correct copy of the court's order is included
as "Exhibit E" of the separately bound appendix of exhibits filed
concurrently herewith, and explicitly made a part hereof by reference.
10. A transcript of the proceedings at the hearing of the motion
was ordered and a true and correct copy of said transcript is attached
hereto as "Exhibit F" of the separately bound appendix of exhibits filed
concurrently herewith, and explicitly made a part hereof by reference.
11. Respondent Court has no jurisdiction over the Petitioner in
the above described action within the meaning of §418.10 of the Code of
Civil Procedure because Petitioner has had almost no contact with the
State of California, did not purposefully avail himself of the privileges or
protections of California, did not expressly aim any action toward
California, did not foresee any effect of an action in California, continues
to reside outside the State of California and has not otherwise submitted
to the jurisdiction of this court.
12. At the time this action was filed, Petitioner was a full time
student at Purdue University in Indiana. Petitioner does not own the web
site alleged to have republished DeCSS, did not create the DeCSS code,
and did not purposefully or expressly direct activity related to the
republication towards California. Petitioner is a former student, Eagle
Scout, and IEEE member. Petitioner owns no property in California, does
no business in California, does not reside in California, and has no
traditional contacts with California. Petitioner has limited financial
capabilities and would be severely prejudiced if forced to defend himself
in California.
13. This petition for writ of mandate is explicitly authorized by
statute as outlined in C.C.P.§418.10(c).
14. Petitioner will suffer irreparable injury and severe prejudice if
Respondent Court is not compelled to vacate its order denying
Petitioner's motion to quash, and further compelled to enter a new and
different order quashing service of process for lack of jurisdiction.
Specifically, Petitioner will be forced to defend himself in an action far from
his home, to produce witnesses located in distant lands outside of
California, to produce documents from outside of California, to find
resources to support a foreign defense, all without being afforded the
protections of due process, fair play, and substantial justice.
15. Petitioner has no plain, speedy, and adequate remedy in the
ordinary course of law to compel Respondent Court to quash the service
of summons in that this is the only proceeding authorized by statute to
obtain the relief sought.
16. Petitioner's papers and actions, are intended to serve only as
a special appearance pursuant to section 418.10 of the California Code of
Civil Procedure. Petitioner neither consents nor submits to the
jurisdiction of this Court, instead, contesting jurisdiction by way of this
petition.
WHEREFORE, Petitioner prays:
1. That this court issue an alternative writ of mandate directing
Respondent Court to make and enter its order quashing the service of
summons on this Petitioner or to show cause before this court in a
specified time and place why it has not done so;
2. That, on the hearing of this petition and the return to it, if
any, this court issue a preemptory writ of mandate directing Respondent
Court to so order;
3. For costs of suit herein incurred: and
4. For such other and further relief as the court may deem
proper.
DATED: September 11, 2000 HUBER & SAMUELSON APC By:
I, Allonn E. Levy, am the attorney for Petitioner in the above entitled
proceeding. I have read the foregoing petition for writ of mandate
and know the contents thereof. The same is true of my own knowledge.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Date:___________________, 2000
__________________________
Allonn E. Levy
Petitioner MATTHEW PAVLOVICH submits this memorandum in
support of his pending petition for writ of mandamus compelling the lower
court to quash service of process. If Real Party in Interest's theory of
jurisdiction is permitted to stand, the lower Court's order will mark an end
to 150 years of traditional jurisdictional analysis and will create California
jurisdiction over virtually every Internet user in the world.
Whether Real Party in Interest, DVD CCA satisfied its burden of
providing competent evidence to prove sufficient minimum contacts
between Petitioner and the state of California to justify the lower Court's
exercise of personal jurisdiction over Petitioner, within the confines of Due
Process and traditional notions of fair play and substantial justice. And,
assuming such contacts exists, whether the exercise of jurisdiction is
reasonable.
No. DVD CCA provided insufficient competent evidence to
support the lower Court's finding of jurisdiction under California's
"effects" test or any other jurisdictional analysis, and any exercise of
jurisdiction is unreasonable.
This is a First Amendment case wherein the plaintiff, DVD CCA,
seeks to enjoin Petitioner PAVLOVICH and some 500 other defendants
from republishing a piece of computer code identified as DeCSS. When
implemented by a user, DeCSS enables consumers to play lawfully
purchased DVDs without the use of a software DVD player licensed by
real party DVD CCA. DVD CCA operates solely as the licensor of the
Content Scrambling System or "CSS" technology.
Plaintiff claims that it is entitled to restrain the defendants right to
republish this speech
Real Party in Interest, Plaintiff DVD CCA is a Delaware corporation
with offices located in Morgan Hill, California, and is the licensing entity
for the technology known as CSS (Exhibit A, at APP.p.4; Complaint at
p.3:12-17).
Petitioner, Defendant PAVLOVICH is an out-of-state resident
served by U.S. mail while a student in Indiana and currently residing in
Texas (See Petitioner's moving papers attached as "exhibit B" to the
Appendix of exhibits, hereinafter "exhibit B" at App.pp.66-68; Declaration
of PAVLOVICH at pp.1-3).
Petitioner's involvement in this case is limited to his role as an
alleged republisher of the DeCSS code while enrolled as a full-time student
at the University in Indiana (see Exhibit B, at APP.p.66-68; Declaration of
PAVLOVICH 2:1-5; 2:8-27). Plaintiff has alleged that Petitioner
PAVLOVICH is responsible for the posting of DeCSS on the
"www.livid.on.openprojects.net" web site (see Exhibit A at APP.p.6;
Complaint at p.5:13-16), but offered no proof to rebut Petitioner's evidence
that he does not own or operate any such site
In reality, PAVLOVICH did not own or operate any site that
published DeCSS, however he did concede for purposes of the motion to
quash that he had input
The LiVid group which allegedly published the DeCSS code was a
loose association of volunteers who were involved in Linux open-source
projects involving various forms of video playback
Petitioner PAVLOVICH has no connection with California.
PAVLOVICH does not reside in California and does not have any regular
clients or work in California (Exhibit B, at APP.pp67-68; Declaration of
PAVLOVICH at pp.2-3). Furthermore, PAVLOVICH has never: solicited
business in California; designated a registered agent for service of
process in California; maintained a place of business in California;
maintained a telephone listing in California; maintained a bank account in
California; or even visited California for any business purpose (Exhibit B,
at APP.p.68; Declaration of PAVLOVICH at 3:2-7). The web site DVD
CCA is assumed to attribute to PAVLOVICH in their complaint was a
"passive" web-site that did not involve the interactive exchange of
information with users, did not solicit or engage in business activities, and
did not solicit contact with California residents (Exhibit B, at APP.pp.67;
Declaration of PAVLOVICH at 2:18-27). Further, Petitioner did not know
of DVD CCA's existence, much less its situs in California, prior to the filing
of this lawsuit and has never done business with DVD CCA (Exhibit B, at
APP.p.68; Declaration of PAVLOVICH at 3:7-9). Petitioner neither directed
nor expressly aimed any activity or contact towards California, much less
any activity or contact specifically related to the trade secret cause of
action that is the subject of this suit (Exhibit B, at APP.pp.66-68;
Declaration of PAVLOVICH at pp.1-3; Exhibit D, at App.pp.168-169,178,
179, 180, 185; Deposition of PAVLOVICH at pp.11-12, 44:4-12, 48:22-25,
52:2-11, 91:22-25)
Petitioner PAVLOVICH asks this Court to intervene on his behalf,
to quash service of process on the grounds that a California Court lacks
power to exercise personal jurisdiction over him. Petitioner is not a
California resident and is not domiciled in California, has no contacts, no
ties, no relationship with California, was not served within California, and
has not consented to or appeared in the California action (Pennoyer v.
Neff (1877) 95 U.S. 714, 733). Additionally, Petitioner engaged in no
"express aiming" of acts towards a California resident involving this
lawsuit by DVD CCA (Calder v. Jones (1984) 465 U.S. 783). Therefore,
there is no constitutionally sufficient basis for any California Court to
assert personal jurisdiction over Petitioner. Accordingly, this Court issue
the appropriate writ, quash service of process, and set aside any existing
default or default judgment as void
In assessing Petitioners request for relief, This Court must carefully
scrutinize the extensive record in the lower Court, to ensure there is no
due process violation. Review of the lower Court's order is governed by
the following principles:
(1) where a defendant properly moves to quash out of state
service of process for lack of jurisdiction, the burden of
proof is upon the plaintiff to establish the facts of
jurisdiction by a preponderance of the evidence; (2)
evidence of those facts or their absence may be in the form
of declarations . . . ; (3) where there is a conflict in the
declarations, resolution of the conflict by the trial court will
not be disturbed on appeal if the determination of that court
is supported by substantial evidence. Substantial evidence
is not deemed synonymous with any evidence but rather of
ponderable legal significance, . . . reasonable in nature,
credible, and of solid value (citations).
Sammons Enterprises Inc. v. Superior Court (1988) 205 Cal.App.3d 1427,
1430.
Where there is no conflict in the evidence, the question of
personal jurisdiction is one of law; in such a case, the lower
court's determination is not binding on the reviewing court.
Here, the lower Court made no findings of fact
California courts are empowered to exercise personal jurisdiction
only to the extent that such an exercise is consistent with the State or
Federal Constitution (CCP §410.10). A court may exercise personal
jurisdiction over a non-resident defendant only when the defendant has
such minimum contacts with the forum state that the maintenance of the
suit does not offend "traditional notions of fair play and substantial
justice" (Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d
106, 111 [citing International Shoe Co. v. Washington (1945) 326 U.S. 310,
316]; Helicopteros Nacionales de Columbia v. Hall (1984) 466 U.S. 408,
414). Such minimum contacts are measured on a case-by-case basis and
the ultimate test is whether "California has a sufficient relationship with
the [particular] defendant and litigation [as] to make it reasonable ("fair
play")..." to require the defendant to defend the litigation in California
(Weil & Brown, Cal.Prac.Guide: Civ.Pro.Before Trial, (The Rutter Group
1999) §3:202 at 3-41.2 )
The personal jurisdiction analysis is broken down into two
questions: [1] does "general" jurisdiction exist; and [2] absent "general"
jurisdiction, does "specific" jurisdiction exist (see Brown v. Watson (1989)
207 Cal.App.3d 1306, 1312). In other words:
If a defendant has sufficient extensive 'contacts' with the
forum state, it may be subject to suit there on all claims
wherever they arise [i.e., general jurisdiction].... [In] other
cases, the jurisdictional sufficiency of the defendant's
contacts depends on an assessment of the 'relationship
among the defendants, the forum, and the litigation [i.e.,
specific jurisdiction]'.
Sammons Enterprises, Inc. v. Superior Court (1988) 205 Cal.App.3d 1427,
1432.
In this case, there is insufficient evidence to support a finding of either
"general" or "specific" jurisdiction.
General jurisdiction depends upon substantial, continuous, and
systematic contacts between the defendant and the forum state (Perkins
v. Benguet Mining Consolidated Mining Co., (1952) 342 U.S. 437, 447-
448
Petitioner is a Texas resident, formerly a resident of Indiana.
PAVLOVICH does not have any regular business, clients or employees in
California, has never solicited business in California, has never designated
a registered agent for service of process in California and has never
maintained a place of business in California or even a telephone listing in
California. He has never owned property or maintained a bank account in
California and has never even been to California for business purposes.
(See generally Exhibit B at APP.pp. 66-68; Declaration of PAVLOVICH at
pp.1-3).
In short, Petitioner has not engaged in any activities in California,
much less any activities that may be described as substantial, continuous,
or systematic. Hence, there is no basis for California to exercise general
jurisdiction over Defendant PAVLOVICH. Since California has no real
relationship with this Defendant, it is not reasonable to require
PAVLOVICH to defend any pending litigation in California.
Specific jurisdiction depends upon a showing that the non-resident
defendant purposefully established contacts with the forum state, that the
plaintiff's cause of action arises out of the defendant's forum-related
contacts, and the forum's exercise of personal jurisdiction comports with
"fair play and substantial justice" (Burger King v. Rudzewicz (1985) 471
U.S. 462, 472, 476-78; Cornelison v. Chaney, (1976) 16 Cal.3d 143, 148). In
other words:
Where a non-resident defendant's activities in the forum are
not so pervasive as to justify the exercise of general
jurisdiction over him, then jurisdiction depends upon the
quality and nature of his activity in the forum in relation to
the particular cause of action.... Thus, as the relationship of
the defendant with the state seeking to exercise jurisdiction
over him grows more tenuous, the scope of jurisdiction also
retracts and fairness is assured by limiting the circumstances
under which the plaintiff can compel him to appear and
defend.
Brown v. Watson (1989) 207 Cal.App.3d 1306, 1312-1313, emphasis added.
Thus, specific jurisdiction is determined under a three-part
test: '(1) The nonresident defendant must do some act or
consummate some transaction with the forum or perform
some act by which he purposefully avails himself of the
privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws; (2) the
claim must be one which arises out of or results from the
defendant's forum-related activities; and (3) exercise of
jurisdiction must be reasonable.
(Jewish Defense Organization Inc. v. Superior Court (1999) 72
Cal.App.4th 1045, 1054, citing Panavision Intern., L.P. v. Toeppen 141
F.3d 1316, 1320 (9th Cir. 1998)).
Here, petitioner has not directed any activity at California from which the
cause of action can be said to have arisen. Further, any relationship
between Petitioner and the forum state (California) is so tenuous that, in
fairness, jurisdiction cannot exist.
(1) PAVLOVICH has had no purposeful
contact with California and has not
purposefully availed himself of the
benefits of the forum state
This case does not involve purposeful contact between Defendant
and California, as the term is used in jurisdictional analysis. A
"purposeful" contact is one in which a particular defendant has
deliberately directed his/her activities at the residents of the forum state or
has deliberately availed himself/herself of the benefits and protections of
the laws of the forum state (Hanson v. Denckla, (1958) 357 U.S. 235, 253-
254; see also Sibley v. Superior Court, (1976) 16 Cal.3d 442, 447-448).
Stated in the converse, personal jurisdiction does not extend to a nonresident
defendant by virtue of "random, fortuitous or attendant..."
contacts over which the defendant had no control (Burger King v.
Rudzewicz, (1985) 471 U.S. 462, 475-76, 485). Furthermore, unilateral
activity on the part of the plaintiff or others
In this case, Petitioner was a full-time student in Indiana during the
time period outlined in the complaint, and never transacted business with
anyone in California (a) The Web site in question was
merely passive and cannot satisfy
the effects tests
Courts have established guidelines in cyberspace cases where the
plaintiff attempts to utilize the "effects test" (Calder v. Jones 465 U.S. 783
(1984)) to satisfy the "purposeful availment" requirement of specific
jurisdiction:
[T]he likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the
nature and quality of commercial activity that an entity
conducts over the Internet. This sliding scale is consistent
with well developed personal jurisdiction principles. 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. [Citation.]
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. [Citation]
(Jewish Defense Organization v. Superior Court, supra, at 1060
Here, any "effects" in California would necessarily have come from
the republication of the DeCSS information through the Internet web site.
a review of the evidence shows that PAVLOVICH has at most
In Jewish Defense Organization Inc. v. Superior Court, supra,
California's Second District Court of Appeals reversed the trial court's
denial of a defendant's motion to vacate default judgment and quash
service where publication of information through a web site allegedly
caused harmful effects in California. In the J.D.O case, the Defendant
actually owned or operated the subject site, had made allegedly
defamatory statements (the subject of the lawsuit) on his Web site, used
the U.S. mail to contact a California resident, previously resided in
California, was aware of the plaintiff's situs in California, and contracted
with a California Internet service provider (ISP) to host the Web site in
question. Yet, the Appellate Court properly concluded that these
contacts were insufficient to support an exercise of jurisdiction.
In the instant case, the forum contacts are even less substantial
than those in Jewish Defense Organization. PAVLOVICH has had no
contacts with California and is only alleged to have offered information on
a passive web site. Thus, this Court should follow the holding in Jewish
Defense Organization, and quash service of process based on a lack of
purposeful availment.
(2) The Claim does not arise from
PAVLOVICH's forum-related activities
DVD CCA has also failed to provide competent evidence to satisfy
the second prong of the specific jurisdiction test. Here, DVD CCA's
cause of action does not relate to any local activities on the part of
Petitioner PAVLOVICH. Personal jurisdiction is restricted to situations
where a particular cause of action relates to or "arises out of" the
defendant's forum-related activities (Jewish Defense Organization, supra,
at 1054 and Perkins v. Benguet Consolidated Mining Co., (1952) 342 U.S.
437, 444-445).
In this case, plaintiff has alleged that defendant PAVLOVICH
misappropriated DVD CCA's trade secrets by discovering the DeCSS
information on-line (following its world-wide publication by others on the
Internet) and then republishing the same previously published trade
secrets anew
Because the cause of action does not arise out of Petitioner's
forum-related activities, DVD CCA has been unable to point to any such
relevant forum contacts. Instead, Real Party in Interest has provided
speculative evidence that PAVLOVICH believed the motion picture
industry and the computer industry in general do business in California (a) DVD CCA's reading of the
"effects" test is contrary to
established law and violative of
Due Process
In the seminal case of of Calder v. Jones 465 U.S. 783 (1984), and
its well known "Calder effects test" the Supreme Court found that when
an individual engages in "express aiming" and satisfies the "effects test,"
jurisdiction is available - the High Court did not hold that where any
effect, of any sort, is felt within a state jurisdiction will follow
In Calder, the defendant sold 600,000 magazines (more than in any
other state) in California, frequently traveled to California, made phone
calls to California to obtain the information that went into the article which
was the subject of the lawsuit, called the California plaintiffs in California
to solicit a comment about the subject article, knew the plaintiffs resided in
California, and declined to print a retraction request sent by the California
plaintiffs (Id, at 783-786). Thus, the Calder Court had no difficulty in
finding that the defendant had purposefully and expressly aimed contacts
at California and that the cause of action arose out of those California
contacts.
petitioners are not charged with mere untargeted negligence.
Rather, their intentional, and allegedly tortious, actions were
expressly aimed at California. . . Petitioner[s] . . . knew [their
actions] would have a potentially devastating impact upon
respondent [the plaintiff]. And they knew 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.
Calder at 789-790.
Similarly in Panavision Int'l., L.P. v. Toeppen, (9th Cir. 1998) 141
F.3d 1316, the Court found jurisdiction on the basis of the defendant's
targeted extortion scheme aimed directly at plaintiff
By stark contrast, here, PAVLOVICH was a student in Indiana
when this suit was instituted, his newly formed business has nothing to
do with this case (see Exhibit D, at APP.pp.168-169; Deposition of
PAVLOVICH at pp.11-12) and has no connection with anyone from
California (see Exhibit D, at APP.pp.178,179; Deposition of PAVLOVICH at
44:4-12; 48:22-25). Additionally, PAVLOVICH had no knowledge of
plaintiff DVD CCA's existence, much less its location, prior to the filing of
the instant lawsuit (see Exhibit D, at APP.p.185; Deposition of
PAVLOVICH at 91:22-25). Also, plaintiff has not contested the fact that
PAVLOVICH has neither operated, nor had sole control over any "LiVid"
web site
In ascertaining the existence of specific jurisdiction, a Court may
only properly consider forum-related activities that relate to the specific
cause of action at hand (J.D.O., supra, at 1058, citing Gordy v. Daily News
(9th Cir. 1996) 95 F.3d 829, 835, it may not consider contacts that relate to
alleged harm by third parties not a party to the particular action.
In the case at bar, Plaintiff is a technology licencing entity (Exhibit
C, at APP.p.77; Opposition brief 3:16-18). It is a small and fairly obscure
For the "effects test" to be constitutional, both the purposeful
directing of activity and the substantial connection to the lawsuit must
exist (see Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 908-911;
Bancroft & Masters Inc. v. Augusta National Inc. (9th Cir.2000) __ f.3d
__, 2000 U.S. App. LEXIS 20917, 2000 C.D.O.S 6941, 2000 D.A.R. 9197). In
Goehring, the Court denied jurisdiction because the individual's forum
contacts were not "substantially" connected to the cause of action. In
Bancroft, the Court found jurisdiction because the Defendant knew the
identity and location of the Plaintiff when it undertook the intentional acts,
aimed at that plaintiff, which gave rise to the lawsuit (see Bancroft
generally), thus satisfying the "express aiming" requirement of Calder.
If the Court were to follow the logic put forth by plaintiffs, instead
of the law as outlined in Calder, Panavision, Bancroft, and Goehring, the
results would be absurd. Holding that mere knowledge of an industry
presence in a particular forum provides jurisdiction for any dispute
remotely touching on that industry's subject matter would offend Due
Process and lead to an obliteration of traditional jurisdictional
requirements.
Petitioner is merely a republisher of information found on the
Internet. He never knew of the existence of the only adverse party in this
case, much less intended his activity to affect a California party. It is well
settled that personal jurisdiction does not extend to a non-resident
defendant by virtue of "random, fortuitous or attendant..." contacts over
which the defendant had no control
In short, PAVLOVICH did not interact with the plaintiff (as is the
case in Calder, McGee, Panavision, Bancroft, and other "effects" cases),
did not direct activities at California, and did not purposefully interact with
Californians in conjunction with the instant case. As such, California has
no jurisdiction over him.
(3) Exercise of jurisdiction would not be
reasonable in this case
Finally, it is unreasonable, and thus constitutionally offensive, to
impose personal jurisdiction in this case. In ascertaining reasonableness
in applying personal jurisdiction, Courts balance a number of factors
including:
The interest of the state in providing a forum for its residents
or in regulating the business involved...; the relative
availability of the evidence and the burden of defense and
prosecution in one place rather than another...; the ease of
access to an alternative forum...; the avoidance of
multiplicity of suits and conflicting adjudications...; and the
extent to which the cause of action arose out of defendant's
local activities....
Fisher Governor Co. v. Superior Court, (1959) 53 Cal.2d 222, 225-26.
To date, the defense is aware of only one California witness
essential to the prosecution and defense of this action, Mr. John Hoy. By
contrast, an array of witnesses that could provide information in this case
are available from Norway, to Japan, to England, to New York and
Connecticut. The fact that two similar cases are currently being
prosecuted in Connecticut
This case has nothing to do with any activities that Defendant
performed in California. In point of fact, PAVLOVICH has performed no
activities in California, did not solicit or engage in transactions with
California, and certainly engaged in no activities with California that gave
rise to the pending litigation.
Because PAVLOVICH is domiciled in Texas and employed in Texas
at a new fledgling company (see Exhibit B at APP.p.67; Declaration of
PAVLOVICH 2:10-12; 2:1-7), and has no contact with, or reason to come
to, California (see Exhibit B at APP.pp.67-68; Declaration of PAVLOVICH
pp.2-3), it would necessarily be a substantial burden on PAVLOVICH to
defend this action in California, to transport witnesses and evidence to
California, to hire California trial counsel, to pay for temporary housing in
California during the trial and to arrange for housing and transport for
necessary witnesses (see Exhibit B at APP.p.68; Declaration of
PAVLOVICH 3:10-17).
With the above factors in mind, it is evident that the balance
weighs heavily against jurisdiction in California. Therefore, and in the
interests of fair play and substantial justice, California should not impose
jurisdiction on Petitioner.
Individual interaction and discourse on the Internet is, by all
accounts in its infancy - creating new law that transforms the Internet into
a liability minefield, with world-wide California jurisdiction, would severely
chill the development and growth of this medium. The high Court has
noted that the Internet is one of the greatest democratic tools of the 21st
century (Reno v. American Civil Liberties Union, (1997) 521 U.S. 844, 851).
It is a "unique and wholly new medium of worldwide human
communication" which disseminates "content as diverse as human
thought" (id. at 883, 884). It would be an unreasonable and fundamentally
unconstitutional decision, that would tolerate the finding of jurisdiction
based on the tenuous connection of a particular publication on the
Internet and the general reputation of a particular forum state
For all of the above reasons, and for those outlined in Petitioner's
exhibits, California cannot be permitted to exercise personal jurisdiction
over Petitioner PAVLOVICH without depriving Petitioner of his
constitutionally protected right to due process of law. It is therefore
respectfully requested that this court intervene, grant the relief requested
in the petition, and compel the lower court to quash service for lack of
jurisdiction.
DATED: September 11, 2000
HUBER & SAMUELSON APC
By:
ALLONN E. LEVY
Attorneys for Defendant
MATTHEW PAVLOVICH
1 References to the separately bound Appendix of Exhibits, filed concurrently herewith,
will be denoted as "APP."
2 The parties have not disputed the fact that the computer code DeCSS is speech for
purposes of First Amendment analysis.
3 DVD CCA has provided no evidence that Mr. Johansen entered this agreement, or that
he violated such an agreement. Instead, DVD CCA simply avers that such agreements are
usually agreed to.
4 "APP" stands for the Appendix to Exhibits filed concurrently herewith. For the Court's
convenience, all references to exhibits will include both the APP page number, followed by the
original document reference. For example APP pp.2-21; Complaint pp.1-20.
5 As indicated below, Petitioner did not own or operate the LiVid web site that allegedly
republished the DeCSS code. The LiVid web site that allegedly contained DeCSS was voluntarily
taken down (see Exhibit B, APP.p.67; Declaration of PAVLOVICH at 2:13-27).
6 See Exhibit B, at APP.p.67; Declaration of PAVLOVICH at 2:17-27.
7 The open project which allegedly posted DeCSS was a loose association of people, whom
PAVLOVICH does not personally know (exhibit A at pp.17-18), nor does he know where those
individuals are domiciled (exhibit A at pp.19:19-21), nor who hosts the LiVid list (exhibit A at 21-
22. The goal of the LiVid group was to create better support for video playback (exhibit A at 23:10-
15), not to harm any party in California.
8 (See Petitioner's Reply Papers attached as Exhibit "D" to the separately bound
Appendix of Exhibits, hereinafter "Exhibit D" at APP.pp174-175; Deposition of PAVLOVICH
at pp.22-23)
9 Real Party did provide two unauthenticated documents that it alleges are attributable to
Petitioner (see DVD CCA's opposition papers attached as Exhibit "C" to the separately bound
Appendix of Exhibits, hereinafter "Exhibit C," at APP.p.111-114; Declaration of Shapiro at
exhibit C). Petitioner filed objections to this evidence pursuant to Evidence code §§350, 412,
702, 800 and 1520-1523, which are incorporated herein by reference (see Exhibit D at
App.pp.157-158; Objections to Evidence at pp.1-2). Without waiving said objections, Petitioner
contends that far from showing any intentional act, the e-mails show Petitioner's disagreement
with DVD CCA's contentions (Exhibit C at APP.p.114; Declaration of Shapiro at exhibit C).
The documents also show that at some point prior to the surfacing of DeCSS on the web (on
October 25, 1999 according to DVD CCA; see Exhibit A at App.p.14; Complaint at 13:17-22),
Petitioner quoted someone else's incorrect hearsay statement that "Reverse engineering is illegal"
in most places (Exhibit C, at App.p.112; Declaration of Shapiro at exhibit C). Additionally, the
October 1, 1999 e-mail regarding reverse-engineering clearly states it relates to software "drivers"
and not to any part of CSS or DeCSS.
10 Again, Real Party in Interest provided no competent evidence to challenge any of these
facts.
11 On or about March 14, 2000, Plaintiff filed a request for entry of Default. As of this
writing, the Court's file indicates that despite the fact that plaintiff has served a notice of request
of entry of default, no such default was entered by the lower Court. In the event that default or
default judgment is entered prior to the hearing on this motion, defendant requests that the
default or default judgment be set aside as void for lack of personal jurisdiction.
12 See Court's order of August 29, 2000, attached as exhibit "E" to the separately bound
Appendix of Exhibit, hereinafter referred to as "Exhibit E" at App.p.225; Order at 1:22-23
13 The Due Process clause requires "that the defendant's conduct and connection with the
forum State are such that he [or she] should reasonably anticipate being hauled into court there"
(World-Wide Volkswagen Corp. v. Woodson, (1980) 444 U.S. 286, 297).
14 Where a defendant attacks jurisdiction post default, the proper mechanism is to file a
motion to concurrently vacate default or default judgment and quashing service of process
(Floveyor Int. Ltd v. Superior Court (1997) 59 Cal.App.4th 789, 792). It is then the plaintiff's
burden both to prove proper service of process and to prove the existence of personal
jurisdiction over the defendant (id. at 792-793).
15 In accord, KLM v. Superior Court, (1951) 107 Cal.App.2d 495, 500; Sammons
Enterprises, Inc. v. Superior Court, supra, 1434; Secrest Machine Corp. v. Superior Court
(1983) 33 Cal.3d 664, 669).
16 Real Party, DVD CCA properly conceded the lack of general jurisdiction by not
arguing the issue in its opposition papers (exhibit C at APP.pp.71-87; Opposition at pp1-13) or
in oral argument below (see transcript of August 29, 2000 proceedings attached as Exhibit "F" to
the separately bound Appendix of Exhibits, hereinafter referred to as "Exhibit F," at
APP.pp.228-247; Transcript at pp.1-20).
17 Thus, any activities on the part of the third parties who created DeCSS, the movie
industry, the computer industry, DVD CCA (or anyone other than PAVLOVICH himself),
cannot be used to support a finding of jurisdiction over Petitioner (Helicopteros Nac., supra).
18 See generally, Exhibit B, at APP.pp66-68; Declaration of Pavlovich at pp.1-3).
19 As stated previously; see also Exhibit B, at APP.p.68; Declaration of Pavlovich at 3:7-9
20 Additionally, if a Web site is interactive (rather than passive), 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 [Citation] (Jewish Defense Organization,
supra, at 1060).
21 For purposes of this motion and Petition only, PAVLOVICH concedes that he had
influence over the information contained in a LiVid web site. However, PAVLOVICH is not the
"owner" or "operator" of such a site.
22 Exhibit A, at APP.p.15; Complaint at p.14:13-17.
23 As indicated previously, Petitioner was not even aware of DVD CCA's existence or of
its presence in California at the time of the alleged republication.
24 Notably, the record is devoid of any expert opinion, judicially noticed fact or other
admissible piece of evidence demonstrating that these industries are actually based in California,
or do a majority of business that is somehow tied to California or attributed to California. These
same industries certainly also have a massive presence in New York, Oregon, Washington, Texas,
India, and Thailand.
25 See Edmunds v. Superior Court (1994) 24 Cal.App.4th 221, 230, holding that the mere
causing of an effect "is not necessarily sufficient to afford a constitutional basis for jurisdiction."
26 DVD CCA's assertion that the effects test in Panavision was satisfied simply because the
heart of the motion picture industry was in California is plainly wrong.
27 In fact, PAVLOVICH testified that the LIVID project was run by volunteers, with no
formal organization, and that PAVLOVICH was not able to do anything on the project for long
periods of time (exhibit a p.52:2-11).
28 As indicated previously, PAVLOVICH had never heard of DVD CCA prior to the filing of
the subject complaint.
29 DVD CCA does not seek to restrain PAVLOVICH'S publication of DeCSS in California, but
rather world-wide. There is no allegation that it was a specific publication to a California resident
that caused DVD CCA's alleged harm. Indeed, whether PAVLOVICH's alleged republication happened
to reach this particular forum is irrelevant to DVD CCA's claim - their claim is based on the fact that
the information was published anywhere. Thus, it cannot be said that the plaintiff's claim arises from
or relates to PAVLOVICH's contact with this particular forum.
30 The Cybersell Court also rejected the plaintiff's argument that the Calder effects test
should supply jurisdiction (id. at 420).
31 Universal City Studios Inc., et al. v. Hughes, case no. 300CV721 RNC, (D.Ct).
32 Universal City Studios Inc., et al. v. Reimerdes, et al., case no. 00Civ.0277 (LAK),
(S.D.N.Y.).
33 DVD CCA has argued, without proffering evidence, that because California has a
reputation for creating movies and high technology, it has jurisdiction over Petitioner whose
conduct allegedly touches on both.
[end]
Cornelison v. Chaney (1976), 16 Cal.3d 143......
Edmunds v. Superior Court (1994), 24 Cal.App.4th 221......
Felix v. Bomoro Kommanditgesellschaft
(1987), 196 Cal.App.3d 106......
Fisher Governor Co. v. Superior Court (1959), 53 Cal.2d 222 ......
Floveyor Int. Ltd v. Superior Court
(1997), 59 Cal.App.4th 789 ......
Goehring v. Superior Court
(1998), 62 Cal.App.4th 894 ......
Jewish Defense Organization, Inc. v. Superior Court
(1999), 72 Cal.App.4th 1045 ......
KLM v. Superior Court, (1951), 107 Cal.App.2d 495 ......
Sammons Enterprises, Inc. v. Superior Court
(1988), 205 Cal.App.3d 1427......
Secrest Machine Corp. v. Superior Court
(1983), 33 Cal.3d 664 ......
Sibley v. Superior Court (1976), 16 Cal.3d 442 ......DOCKETED CASES
DVD Copy Control Association, Inc. v. Andrew Bunner
Superior Court Case No. CV-786804,
Appellate Court Case No. H021153 ......
Universal City Studios Inc., et al. v. Reimerdes, et al.
Case No. 00Civ.0277 (LAK), ......STATUTES
C.C.P.§473 ......
Civ. Code §3426 et seq ......
Evidence code §350 ......
Evidence code §412 ......
Evidence code §702 ......
Evidence code §800 ......
Evidence code §1520-1523 ......
I.
This petition arises from an order of Respondent Santa Clara
County Superior Court denying Petitioner's Motion to Quash Service of
Process. Petitioner, Matthew Pavlovich, was a student at Purdue
University in the State of Indiana at the time he was sued, has had no
contacts with the State of California sufficient to warrant the exercise of
personal jurisdiction by the State, and is currently being denied his
constitutionally protected right of due process. If this court does not
intervene, the lower court's order will have created, de facto, nearly
limitless California jurisdiction over individuals involved in the rapidly
expanding world of the Internet.
INTRODUCTION
II.
PETITION FOR WRIT OF MANDATE
ALLONN E. LEVY
Attorneys for Petitioner
MATTHEW PAVLOVICH
III.
VERIFICATION
IV.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PETITION FOR WRIT OF MANDATE
A. Introduction
1. Question Presented:
2. Short Answer:
B. Nature Of Action
1. Situs and Identification of Parties
2. Summary Of Facts Re Jurisdiction
C. Summary Of Argument
D. BECAUSE CALIFORNIA LACKS PERSONAL
JURISDICTION OVER PETITIONER PAVLOVICH, THIS
COURT SHOULD INTERVENE AND ISSUE THE
REQUESTED RELIEF
1. Standard of Review
2. The court lacks personal jurisdiction over defendant
PAVLOVICH
a. General Jurisdiction Is Absent In This Case
b. Specific Jurisdiction Is Similarly Absent In
This Case
V.
CONCLUSION
ENDNOTES
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