Yue v. Yang CA1/5

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Filed 3/8/21 Yue v. Yang CA1/5
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.


            THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




 DONGXIAO YUE,
           Plaintiff and Appellant,
 v.                                                                     A159145
 WENBIN YANG,
                                                                        (Contra Costa County Super.
           Defendant and Respondent.                                    Ct. No. MSC 1601118)



         California resident Dongxiao Yue (plaintiff) filed a lawsuit against
several defendants, including Canadian resident Wenbin Yang, for unfair
competition and defamation. The trial court granted Yang’s motion to quash
service of summons and complaint for lack of personal jurisdiction. (Code
Civ. Proc., § 418.10.)
         We reverse. We conclude plaintiff satisfied his burden of
demonstrating Yang was subject to specific jurisdiction in California and
that Yang failed to show the exercise of jurisdiction was unreasonable.




                                                               1
              FACTUAL AND PROCEDURAL BACKGROUND1
      Plaintiff lives in Northern California. He is a software developer.
Plaintiff established and moderated a “Chinese language online community
website called Zhen Zhu Bay” (ZZB). Many of ZZB’s bloggers and readers are
California residents. Muye Liu is a California resident. He owns and
operates a competing website, Yeyeclub.com (Yeyeclub). Yang posted on both
websites. He lives in Canada.
                                       A.
                                   Complaint
      Plaintiff filed a verified complaint in Contra Costa County in propria
persona against several defendants, including Yang and Liu, alleging claims
for unfair competition and defamation. The gist of the complaint was that
defendants engaged in unlawful business practices and defamed plaintiff to
destroy ZZB and plaintiff’s reputation.
      The complaint alleged Yang posted on ZZB and Yeyeclub. Plaintiff
removed Yang’s “sexually explicit, violent and insulting” posts from ZZB.
Liu, however, encouraged Yang to continue posting on Yeyeclub. Thereafter,
Yang began making “defamatory attacks” on plaintiff on Yeyeclub. According
to the complaint, Yang and Liu worked together to attack plaintiff on
Yeyeclub and “induced many ZZB bloggers to join” Yeyeclub.
      On Yeyeclub, Yang threatened to “bully Plaintiff in Plaintiff’s backyard
in California and openly challenged Plaintiff to sue him in California” so that
Yang “could leave a glorious record in . . . American legal history.” In another
post, Yang announced that he would travel to San Francisco to carry out a
meeting “as originally planned.” The post contained email communications


      1We recite only those facts necessary to resolve the issue on appeal,
disregarding references to, and evidence of, other lawsuits filed by plaintiff.

                                        2
between Yang and others which referred to plaintiff by name. Later, Yang
posted that he “arrived in California” and urged his “collaborators” to come to
“the meeting.” Yang also asserted plaintiff had “violated [a] court order” and
that plaintiff’s “family was nearly driven to the streets.” In another post,
Yang accused plaintiff of stealing his information—and committing
burglary—using a “Trojan horse virus.” Yang also published a fax he sent
plaintiff asserting that plaintiff had attacked him with an Internet virus.
      The complaint alleged California had personal jurisdiction over Yang
because he had sufficient minimum contacts with the forum state. According
to the complaint, Yang intentionally directed his defamatory messages at
plaintiff in California, and intended to, and did, cause harm there.
                                       B.
                               Motion to Quash
      Yang moved to quash service of summons and complaint in propria
persona, arguing California lacked personal jurisdiction over him because he
lived in Canada and lacked minimum contacts with California. Yang also
argued the exercise of jurisdiction would be unreasonable because he lived in
Canada.
      In a supporting declaration, Yang averred he had been a Canadian
resident for over twenty years. He asserted he had no contact with California
and had not directed any advertising, including on the Internet, to California
residents. Yang also averred, on information and belief, that Yeyeclub.com
was an online discussion forum where users interacted with each other
anonymously and that the website’s content “was not directed exclusively at
California residents.” Finally, Yang testified the statements at issue in the
lawsuit were made by “anonymous posters.” Yang did not, however, deny
making the statements.



                                       3
      Plaintiff’s opposition asserted California had specific jurisdiction over
Yang. Plaintiff argued Yang purposefully availed himself of forum benefits
by intentionally aiming his defamatory comments at California, where many
of Yeyecub’s bloggers and readers resided. Plaintiff also noted Yang’s posts
on Yeyeclub mentioned traveling to—and harming plaintiff in—California.
Additionally, plaintiff argued his claims arose out of Yang’s contacts with
California and that exercising jurisdiction over Yang was reasonable.
Finally, plaintiff requested jurisdictional discovery before the court ruled on
the motion to quash.
      In a detailed declaration, plaintiff averred Yang posted defamatory
information about him on Yeyeclub. Although the posts did not use Yang’s
name, plaintiff provided a detailed explanation of how he was able to
identify Yang as the author of the posts. The declaration described Yang’s
posts—which appeared on the “front pages of the website”—and attached
numerous documents, including the posts. In addition to posts identified in
his complaint, plaintiff also cited Yang’s post that asserted plaintiff’s criminal
liability under “California Penal Code Section 461(1).” Yang posted that he
“ ‘would go to California State and bully Dr. Yue in his physical backyard’ ”
and invited Yue to sue him in California: “ ‘I always stated that I would
destroy you the shyster in U.S. federal court . . . . I want to go to California
State for a tour, with your support, what a pleasure.’ ” Plaintiff further
averred that Yang knew plaintiff lived in California, and that California
“residents . . . read Yang’s defamatory statements.” The declaration also
described Yang’s direct correspondence with plaintiff, which included faxing
plaintiff and posting the fax on Yeyeclub.
      In reply, Yang argued posting comments on the Internet did not
establish personal jurisdiction, particularly where “no single posting” was



                                        4
made under his name. Yang also claimed plaintiff failed to establish the
posts were aimed at California or had a California audience. He
characterized plaintiff’s assertions as speculative, unsupported by
“corroborating evidence,” and based on hearsay, but he did not object to
plaintiff’s declaration. In a supplemental declaration, Yang averred the
Yeyeclub posts were not made “with the name of Yang.” He also denied ever
visiting California.
                                        C.
                       Order Granting the Motion to Quash
      The court granted the motion. First, it determined there was no basis
for general jurisdiction over Yang, a Canadian resident. Next, and relying on
Burdick v. Superior Court (2015) 

233 Cal. App. 4th 8

(Burdick), the court
concluded there was no basis for specific jurisdiction over Yang because the
interaction between plaintiff and Yang “took place on the Internet” and
posting information on websites did not constitute “ ‘minimum contacts’ ”
with California.
      According to the court, plaintiff alleged Yang harmed his reputation by
publishing injurious postings about him to California residents, but had not
presented evidence that Yang purposefully availed himself of forum benefits
by aiming or intentionally targeting his conduct at California or a California
audience. The court did not specifically address the content of the postings,
Yang’s alleged visit to California, or plaintiff’s evidence identifying Yang as
the author of the posts.
      Finally, the court opined that exercising jurisdiction over Yang “would
not comport with the notion of fair play and substantial justice” because
plaintiff was “the only link between [Yang] and the forum.” The court did not
address plaintiff’s request for jurisdictional discovery.



                                        5
                                  DISCUSSION
                                         I.
                                General Principles
      “ ‘California courts may exercise jurisdiction over a nonresident on
any basis consistent with the federal or state Constitution. [Citation.] To
comport with federal and state due process, California may only exercise
jurisdiction when a defendant has sufficient minimum contacts with the state
to satisfy “ ‘traditional notions of fair play and substantial justice.’ ”
[Citations.] Under the minimum contacts test, we examine the quality and
nature of a defendant’s action to determine whether requiring him to submit
to jurisdiction in California is reasonable and fair.’ ” (Zehia v. Superior
Court (2020) 

45 Cal. App. 5th 543

, 551–552 (Zehia).)
      When a defendant moves to quash service of process on jurisdictional
grounds, the plaintiff has the burden of proving, by a preponderance of
the evidence, facts justifying the exercise of jurisdiction. 

(Zehia, supra

,
45 Cal.App.5th at p. 552; ViaView, Inc. v. Retzlaff (2016) 

1 Cal. App. 5th 198

,
209–210 (ViaView).) “The plaintiff must come forward with affidavits and
other competent evidence to carry this burden.” (ViaView, at p. 210.) A
verified complaint is the functional equivalent of an affidavit. (Evangelize
China Fellowship, Inc. v. Evangelize China Fellowship (1983) 

146 Cal. App. 3d 440

, 444.) “If the plaintiff meets this burden, ‘it becomes the defendant’s
burden to demonstrate that the exercise of jurisdiction would be
unreasonable.’ ” (ViaView, at p. 210.)
      Where—as here—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.’ ” 

(ViaView, supra

, 1 Cal.App.5th at
p. 210.) “ ‘ “The ultimate question whether jurisdiction is fair and reasonable



                                         6
under all of the circumstances, based 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.” ’ ” (Ibid.)
                                         II.
                 California Has Specific Jurisdiction over Yang
      “ ‘Personal jurisdiction may be either general or specific.’ ” 

(Zehia, supra

, 45 Cal.App.5th at p. 552.) Here, we consider only whether Yang is
subject to specific jurisdiction. A court may exercise specific jurisdiction over
a nonresident defendant only if: (1) the defendant has purposefully availed
himself of forum benefits; (2) the controversy relates to, or arises out of, the
defendant’s contacts with the forum; and (3) the exercise of jurisdiction
comports with fair play and substantial justice. (Ibid.) The specific
jurisdiction analysis focuses on “ ‘ “ ‘the relationship among the defendant,
the forum, and the litigation.’ ” ’ ” (Ibid.)
      A.     Purposeful Availment
      The first element of specific jurisdiction is whether the defendant
purposefully availed himself of forum benefits. 

(Zehia, supra

, 45 Cal.App.5th
at p. 552.) Courts apply the “ ‘effects test’ ” to determine purposeful
availment in the defamation context. (Pavlovich v. Superior Court (2002)

29 Cal. 4th 262

, 269.) Under this test, intentional conduct occurring
elsewhere may give rise to jurisdiction in California where it is calculated to
cause injury in California. The defendant must expressly aim or target his
conduct toward California, with the knowledge that his intentional conduct
would cause harm in the forum. (Id., at pp. 271–273.)
      As the trial court recognized, mere posting of defamatory comments
on the Internet, even with the knowledge that the plaintiff is in the forum
state, is not enough to establish specific jurisdiction. 

(Burdick, supra

,



                                          7
233 Cal.App.4th at p. 20.) But specific jurisdiction may be established under
the effects test where a defendant sends “California-focused” social media
messages “directly” to California residents “with knowledge the recipients
[are] California residents” for the alleged purpose of causing reputational
injury there. 

(Zehia, supra

, 45 Cal.App.5th at pp. 556–558.)2
      Here, plaintiff’s evidence—his verified complaint and his
uncontradicted declaration—established Yang purposefully availed himself
of forum benefits. The evidence showed Yang targeted his conduct at
California: he communicated directly with plaintiff and posted on Yeyeclub,
a website owned and operated by a California resident that had a California
audience.3 Plaintiff also offered competent evidence that Yang’s posts had
a California focus: Yang threatened to “bully” plaintiff in California and
communicated his plan to travel to San Francisco. Yang also announced that
he had “arrived in California” and urged his “collaborators” to join him.
      Additionally, plaintiff provided evidence that Yang’s posts were
directed to, and received by, a California audience: plaintiff and other
California residents “read Yang’s defamatory statements” on Yeyeclub.
Finally, plaintiff offered evidence that Yang posted on Yeyeclub with the
intent to cause harm in California, where Yang knew plaintiff lived.
Together, this evidence demonstrated Yang’s “suit-related conduct created



      2   Zehia was decided after the trial court’s decision in this case.
      3 In the trial court, Yang averred the Yeyeclub posts were made
anonymously, but Yang did not deny communicating with plaintiff or posting
on the website. Thus, for our purposes, the evidence is undisputed that Yang
made the posts. On appeal, Yang critiques the evidence plaintiff offered in
opposition to the motion to quash. We disregard these contentions. In the
trial court, Yang did not object to plaintiff’s evidence and he cannot raise
an evidentiary objection for the first time on appeal. (Crouch v. Trinity
Christian Center of Santa Ana, Inc. (2019) 

39 Cal. App. 5th 995

, 1020.)

                                          8
a substantial connection between [Yang] and California.” 

(Zehia, supra

,
45 Cal.App.5th at pp. 556–558.)
      In granting the motion to quash, the trial court relied on Burdick, a
defamation case arising out of the posting of allegedly defamatory material
on Facebook. There, a group of physicians and others (collectively, bloggers)
published entries on an Internet blog questioning the safety and efficacy of
a skin care product. In response, a representative of the skin care company
made a public Facebook post suggesting the bloggers had criminal histories.

(Burdick, supra

, 233 Cal.App.4th at pp. 14–15.) The bloggers filed a lawsuit
in California against the skin care representative, an Illinois resident,
alleging several torts, including defamation. (Id. at pp. 13–14.) The trial
court denied the defendant’s motion to quash service of summons, concluding
California had specific jurisdiction under the “ ‘ “effects” ’ test.” (Id. at p. 16.)
      The Burdick court reversed. 

(Burdick, supra

, 233 Cal.App.4th at
pp. 16, 30.) It held the defendant’s suit-related conduct—the public posting
of an allegedly defamatory statement on social media—did not create
a “substantial connection” with California sufficient to confer specific
jurisdiction. (Id. at p. 25.) The court noted the defendant published the post
from Illinois and that there was no evidence the social media page “had
a California audience” or “a California focus.” (Ibid.) Burdick held that
posting statements about a person on social media or the Internet, “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 . . . but that the defendant expressly aim or specifically direct




                                          9
his or her intentional conduct at the forum, rather than at a plaintiff who
lives there.” (Id. at p. 13.)
      This case bears some resemblance to Burdick because the defendants in
both cases posted the allegedly defamatory material online. But that is
where the similarity between this case and Burdick ends. Unlike the
defendant in Burdick, Yang communicated directly with plaintiff.
Additionally, and in contrast to the Facebook post in Burdick, which did not
mention the bloggers by name, Yang’s posts on Yeyeclub mentioned plaintiff
by name and threatened to harm him in California. The posts repeatedly
referred to California, suggested California criminal liability, and threatened
a California visit by Yang. Lastly, in Burdick, there was no evidence the skin
care representative’s social media page “had a California audience.”

(Burdick, supra

, 233 Cal.App.4th at p. 25.) Here, plaintiff offered
uncontradicted evidence that Yeyeclub had a California audience, and that
California residents read the allegedly defamatory postings.
      Plaintiff has thus shown more than a mere posting on the Internet
combined with a defendant’s awareness that his conduct might cause injury
in California. Rather, he has shown that Yang targeted his postings at
plaintiff, emphasized the California connection, and threatened to come to
California, with an awareness that Californians would be in the audience.
Plaintiff has established the purposeful availment element.
      B.     Relatedness Between the Controversy and Forum Contacts
      The second element for specific jurisdiction is whether the controversy
relates to, or arises out of, the defendant’s contacts with the forum. 

(ViaView, supra

, 1 Cal.App.5th at p. 216.) There must be “ ‘an affiliation between the
forum and the underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State and is therefore subject to the



                                      10
State’s regulation.’ [Citation.] ‘[S]pecific jurisdiction is confined to
adjudication of issues deriving from, or connected with, the very controversy
that establishes jurisdiction.’ ” (Bristol-Myers Squibb Co. v. Superior Court
(2017) 

137 S. Ct. 1773

, 1780.) This element is easily satisfied here. The
verified complaint alleged Yang’s defamatory posts on Yeyeclub injured
plaintiff’s business and his reputation in California. On this record, the
undisputed evidence demonstrates there is an “adequate link” between
plaintiff’s claims and Yang’s contacts with California. (Id. at p. 1781.) Yang
does not persuasively argue otherwise.
      C.    Fair Play and Substantial Justice
      Because plaintiff established facts justifying the exercise of specific
jurisdiction, Yang had the burden to show “the assertion of jurisdiction would
be unfair or unreasonable.” (Jayone Foods, Inc. v. Aekyung Industrial Co.
Ltd. (2019) 

31 Cal. App. 5th 543

, 563.) Yang “has not made the requisite
showing.” (Id. at p. 563.)
      “An otherwise valid exercise of personal jurisdiction ‘is presumed
to be reasonable.’ [Citation.] Therefore, [the] defendant ‘must present
a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.’ ” “A determination of reasonableness rests
upon a balancing of interests: the relative inconvenience to defendant of
having to defend an action in a foreign state, the interest of plaintiff
in suing locally, and the interrelated interest the state has in assuming
jurisdiction. [Citation.] The factors involved in the balancing process include
the following: ‘the relative availability of evidence and the burden of defense
and prosecution in one place rather than another; the interest of a state
in providing a forum for its residents or regulating the business
involved; . . . and the extent to which the cause of action arose out



                                        11
of defendant’s local activities.’ ” (Integral Development Corp. v.
Weissenbach (2002) 

99 Cal. App. 4th 576

, 591, italics added (Integral
Development).)
      To be sure, there is some burden associated with requiring Yang,
a Canadian resident, to litigate this case in California. (Integral

Development, supra

, 99 Cal.App.4th at p. 592.) But that is only one factor
in assessing reasonableness, and that factor does not weigh heavily in Yang’s
favor because there is no evidence in the record that Yang would be at
a “ ‘severe disadvantage’ in comparison to his opponent” due to his location.
(Burger King Corp. v. Rudzewicz 

471 U.S. 462

, 478; Integral Development, at
p. 592 [burden on foreign defendant in litigating case in California did not
establish exercise of jurisdiction was unreasonable].)
      Other factors weigh in favor of exercising jurisdiction. For example,
evidence supporting plaintiff’s claims will likely be found in California, and
Yang has not identified any witnesses or evidence located elsewhere.
(Integral 

Development, supra

, 99 Cal.App.4th at p. 592.) California also “has
a manifest interest in providing a local forum for its residents to redress
injuries inflicted by out-of-state defendants.” (Id. at p. 591.) Finally, in
targeting California with his conduct, Yang could fairly expect to have been
held “answerable on a claim related to those activities.” (Keeton v. Hustler
Magazine, Inc. (1984) 

465 U.S. 770

, 776.)
      Given plaintiff’s “showing of the requisite minimal contacts with
California, the nexus between those contacts and the claims raised in the
lawsuit, and the allegations in the complaint that [Yang] has committed torts
causing effects in California,” we conclude Yang “has not met his burden of
presenting a ‘compelling’ case that jurisdiction would be unreasonable under
all of the circumstances.” (Integral 

Development, supra

, 99 Cal.App.4th at



                                        12
p. 593; Jayone Foods, Inc. v. Aekyung Industrial Co. 

Ltd., supra

,
31 Cal.App.5th at p. 565 [defendant failed to make “compelling case” that
exercising jurisdiction would be unreasonable or unfair].)
      We conclude Yang is subject to specific jurisdiction in California.
Having reached this result, we need not consider whether the court erred by
failing to consider—and grant—plaintiff’s request for jurisdictional discovery.
                                DISPOSITION
      The order granting Yang’s motion to quash service of summons and
complaint is reversed. The court is ordered to enter a new order denying the
motion and reinstating the complaint as to Yang. Plaintiff is entitled to
recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)




                                       13
                                         _________________________
                                         Seligman, J.*


WE CONCUR:


_________________________
Needham, Acting P. J.


_________________________
Burns, J.




A159145




     * Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

                                    14

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