Court of Appeal Declares:
Facebook Libel Case Might Be Triable Where Defendant Resides
Effect on Orange County Plaintiffs Is Not Enough, Justice Fybel Says
Two residents of Orange County who sued an Illinois resident for libel and other torts based on material he posted on his Facebook page were told by the Court of Appeal yesterday that they might have to go to Illinois if they want to maintain their action.
The Fourth District's Div. Three reversed an order denying the Illinois resident's motion to quash service of process, but held that the trial judge must rule on the plaintiffs' motion to conduct discovery to show that the jurisdictional requisites are met.
Justice Richard D. Fybel wrote:
"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."
Bloggers Raise Questions
Plaintiffs John Sanderson and George Taylor are bloggers who have questioned the safety of a skin care product, NeriumAD, manufactured by Texas companies. Defendant Douglas Burdick is a consultant to the companies and operates out of Illinois.
In a counterattack on Sanderson and Taylor, Burdick labeled them "Blogging Scorpions" and accused them of various improprieties.
Orange Superior Court Judge Franz E. Miller denied Burdick's motion to quash service on him.
In arguing that jurisdiction exists in California, the bloggers relied upon Calder v. Jones (1984) 465 U.S. 783 and Pavlovich v. Superior Court (2002) 29 Cal.4th 262.
Actress Shirley Jones was the plaintiff in Calder. The U.S. high court said she could maintain a libel here, where her home is, against the National Enquirer, a publication based in Florida, based on the "effect" on her in California, where the publication has a circulation of about 600,000.
In Pavlovich, the California Supreme Court declared that for jurisdiction to lie here, in addition to "the defendant's knowledge that his intentional conduct would cause harm in the forum," there must be "evidence of express aiming or intentional targeting" at the forum.
Fybel also made note of Walden v. Fiore (2014) 571 U.S. , decided last Feb. 25, in which the Supreme Court found that in determine which forum is appropriate, "[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."
Applies Tests
The jurist declared:
"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 "publicly available," but that fact would mean it would have been less likely Burdick had intentionally targeted California as opposed to any other jurisdiction."
Fybel said that while the plaintiffs did not make the necessary showing, Miller should consider whether to permit discovery, by which they might be able to establish a basis for the action to proceed here.
The opinion orders:
"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 case is Burdick v. Superior Court, Sanderson RPI, G049107.
David S. Ettinger and H. Thomas Watson of Horvitz & Levy and John B. Stephens and Laura A. Forbes of Stephens Friedland represented Burdick. Kent J. Schmidt, Lynnda A. McGlinn and Karen A. Morao of Dorsey & Whitney acted for Sanderson and Taylor.