California Court of Appeals, Fourth District, Third Division
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County No. 30-2012-00621436, Franz E. Miller, Judge.
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Horvitz & Levy, David S. Ettinger, H. Thomas Watson; Stephens Friedland, John B. Stephens and Laura A. Forbes for Petitioner.
No appearance for Respondent.
Dorsey & Whitney, Kent J. Schmidt, Lynnda A. McGlinn and Karen A. Morao for Real Parties in Interest.
In this writ proceeding, we address whether, in a lawsuit for defamation, a nonresident defendant is subject to personal jurisdiction in California on the ground that, while in his or her state of residence, the defendant posted (and removed) allegedly defamatory statements about the plaintiff on the defendant’s publicly available Facebook page.
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.
The plaintiffs in this case—John Sanderson and George Taylor (together, Plaintiffs)—sued Douglas Burdick, an Illinois resident, for defamation and other intentional torts, based on an allegedly defamatory posting made by Burdick on his personal Facebook page while he was in Illinois. The respondent court denied Burdick’s motion to quash service of summons for lack of personal jurisdiction, and Burdick has challenged that ruling by petition for writ of mandate or prohibition.
We conclude, based on the record before us, Plaintiffs did not meet their burden of presenting facts demonstrating that Burdick’s conduct constituted minimum contacts sufficient to create personal jurisdiction under the standards set forth by the United States Supreme Court and California Supreme Court, as discussed in this opinion. We therefore grant Burdick’s writ petition and direct the respondent court to vacate its order denying Burdick’s motion to quash. Rather than direct the respondent court to grant the motion to quash, however, we first give that court the opportunity to rule on Plaintiffs’ request to conduct jurisdictional discovery.
Allegations, Jurisdictional Facts, and Procedural History
Allegations of the Complaint
Plaintiffs filed a verified complaint and a verified first amended complaint (the Complaint), naming as defendants Nerium International, LLC (Nerium International), Nerium Biotechnology, Inc. (Nerium Biotechnology), Nerium SkinCare, Inc. (Nerium SkinCare),  Jeff Olson, and Burdick. The Complaint asserted six causes of action against Burdick: (1) libel per se (by Sanderson only); (2) slander per se (by Taylor only); (3) defamation (by Plaintiffs); (4) intentional infliction of emotional distress (by Plaintiffs); (5) negligent infliction of emotional distress (by Plaintiffs); and (6) invasion of privacy (by Plaintiffs).
The Complaint alleged the following:
Nerium International and Nerium SkinCare are incorporated in Texas, and Nerium Biotechnology is incorporated in Canada. The Nerium Entities are involved in the research, development, advertising, marketing, and sale of a skin care product called NeriumAD, the active ingredient of which is an extract of the nerium oleander plant. The primary purpose of Nerium International is to market and coordinate the sales of NeriumAD through “multi level marketing, ” a marketing strategy in which salespersons are compensated not only for the sales they generate, but also for sales generated by other salespersons whom they had recruited.
Olson is the chief executive officer of Nerium International, and Burdick is “another high level and highly compensated representative of Nerium International and is the company’s Corporate Consultant.” Plaintiffs are physician scientists and entrepreneurs. They have, since November 2011, maintained a noncommercial Internet blog Web site known as BareFacedTruth.com, which “discusses science and skin care” and “is dedicated to providing educational material, including information and research, relating to medical scientific matters that are in the public interest, including skin care science.”
In June 2012, Plaintiffs began to question the science behind NeriumAD and published blog entries questioning its safety and efficacy and criticizing Nerium International’s multilevel marketing organization. “In response to Plaintiffs’ questioning of the science behind NeriumAD and criticisms of the
Nerium organization, Defendants engaged in a campaign of harassment and defamation against Plaintiffs to destroy their reputations using false and misleading information.” As a precursor to this campaign, Olson conducted a recorded teleconference aired to salespeople (called “Brand Partners”), in which he referred to Plaintiffs as “blatant, jerk liars” (boldface omitted) and stated, “wait till you see what we have heading your way. It’s—actually, I hate to say this, but I’m going to really enjoy the day we put it out there, quite honestly” (boldface & italics omitted).
In November 2012, Olson recorded and published on Nerium International’s Web site a video recording in which he stated that an investigation had “uncovered the fact that the blogger has had ‘multiple domestic violence issues.’”
Burdick, as his part of the campaign of harassment, in November 2012, posted on his Facebook page an announcement that “more scandalous information would be revealed regarding the ‘Blogging Scorpions.’” The Facebook posting announcement stated that within a short period of time, new information would be posted on “‘[w]hy he uses multiple social security numbers’ and ‘how many times he has been charged with domestic violence.’” Burdick posted those statements on Facebook “in his capacity as Corporate Consultant for Nerium International” and a person reading those statements would reasonably understand they referred to Sanderson or Taylor.
Motion to Quash Service of Summons
Burdick filed a motion to quash service of summons (the motion to quash), based on lack of personal jurisdiction. With the motion to quash, Burdick submitted his own declaration stating he is an independent contractor for Paradiselife, Inc., an Illinois corporation with its principal place of business in Illinois, through which he provides consulting services to Nerium International. Burdick declared he has been a resident of Illinois since 1971. He has never lived in California; maintained an office or been employed in California; had a bank account, safe deposit box, or mailing address in California; owned or leased real property in California; had employees in California; been a party to a contract with a person or entity in California; or held any licenses or certifications issued by any governmental agency or unit in California. Burdick declared he posted and later removed the allegedly defamatory Facebook posting from his personal Facebook page while he was in the State of Illinois.
Plaintiffs filed opposition to the motion to quash, which included a declaration (with exhibits) from Sanderson and a declaration from Plaintiffs’
counsel. Sanderson declared that Burdick posted defamatory material on his “publicly available Facebook wall.” Among the exhibits attached to Sanderson’s declaration was a print copy of the allegedly defamatory Facebook posting made by Burdick. That posting did not mention Sanderson or Taylor by name, but referred to a “Blogging scorpion, liar, terrorist, pretencer, amateur, wanna be, con artist.” The posting then stated: “BOY DOES THIS ‘BLOGGING SCORPION’ HAVE A LOT TO HIDE! More to come shortly about the Truth and Facts about this ‘Blogging Scorpion’, things like: [¶] [(1)] Why he lost his medical license (yes we have the documents directly from the Medical Board of California) [¶] [(2)] Why he personally uses multiple social security numbers [¶] [(3)] How many times has he been charged with domestic violence [¶] [(4)] Why he makes medical claims about his product ...