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ViaView, Inc. v. Retzlaff

California Court of Appeals, Sixth District

July 6, 2016

VIAVIEW, INC., Petitioner and Respondent,
v.
THOMAS RETZLAFF, Respondent and Appellant.

         Santa Clara County Superior Court No: 114CH005460 The Honorable Socrates Peter Manoukian

          Respondent and Appellant Thomas Retzlaff pro per.

          Attorneys for Petitioner and Respondent ViaView, Inc.: Jason S. Leiderman, Law Offices of Jay Leiderman.

         THE COURT.[*]

         Petitioner and respondent ViaView, Inc. (a corporation, hereafter "ViaView") filed a petition for a workplace violence restraining order (Code Civ. Proc., § 527.8)[1] against respondent and appellant Thomas Retzlaff. Retzlaff, a resident of Texas, filed a motion to quash the petition for lack of personal jurisdiction. He also filed other motions, either concurrently with or after he filed the motion to quash. The trial court concluded that Retzlaff had made a general appearance since he had participated in the litigation beyond filing the motion to quash, . On that basis, it denied the motion to quash.

         We conclude the trial court erred when it denied the motion to quash. The motion should have been granted because under section 418.10, subdivision (e), a party who moves to quash may-concurrently with or after filing a motion to quash-participate in the litigation and "no act" by the party constitutes an appearance unless and until the proceedings on the motion to quash are finally decided adversely to that party. (§ 418.10, subd. (e); Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 425-427 (Air Machine).) We will therefore grant writ relief, vacate the trial court's order denying the motion to quash, and direct the court to enter a new order granting the motion.

         Facts & Procedural History

         James McGibney, a resident of California, is the CEO and founder of ViaView, which operates the websites BullyVille, CheaterVille, and others. Retzlaff, who at all relevant times resided in Texas or Arizona, is a critic of the BullyVille and CheaterVille websites.

         On March 17, 2014, ViaView filed a petition for a workplace violence restraining order against Retzlaff. The petition alleged that Retzlaff had made credible threats of violence against McGibney to be carried out at his workplace. (McGibney works out of his home.) ViaView's petition described 29 social media postings or e-mails allegedly authored by Retzlaff, four of which could be construed as containing threats of violence.[2] In February 2014, [3] McGibney reported the alleged threats to the San José Police Department, which recommended he petition the court for a restraining order. The petition asked for a restraining order on behalf of McGibney, McGibney's wife, and their three young children.

         A. The March 17, April 8, and May 12 Ex Parte Hearings

         ViaView asked for a temporary restraining order (TRO) against Retzlaff, which the court granted in an ex parte hearing on March 17, the day the petition was filed. Among other things, the TRO directed Retzlaff not to "[e]ngage in... defamation, stalk, threaten, or harass friends or business associates" and to stay at least 300 feet away from McGibney, his workplace, home, vehicle, family members, and his childrens' school or child care facility. The court set the matter for a hearing on ViaView's request for a permanent injunction on April 8.

         McGibney and ViaView's attorney, Jason Leiderman, appeared at the April 8 hearing on the permanent injunction. Leiderman advised the court that ViaView had not yet served Retzlaff. He asked the court to continue the hearing and reissue the TRO. Throughout the hearing, the court questioned whether it had jurisdiction over Retzlaff, who lived in Texas. ViaView argued that the court had personal jurisdiction because Retzlaff's conduct was directed at California since he published McGibney's California address and was "telling people to go kill [McGibney] and rape his wife here in San Jose." ViaView submitted a brief and "a massive stack of proof" to support its allegations, which the court agreed to read over a break. (Neither the brief nor the "massive stack of proof" is in the record.)

         After reviewing ViaView's submissions, the court agreed to extend the TRO for 30 days to allow ViaView to serve Retzlaff. The court also continued the hearing on the permanent injunction to May 12.

         At the May 12 hearing, ViaView advised the court that Retzlaff had moved to Phoenix, Arizona, and had not been served. ViaView then asked the court to reissue the TRO and to add Retzlaff's adult daughter (Daughter) as a protected person under the TRO. ViaView conceded that Daughter was not its employee, but argued that she qualified for protection under section 527.8 as a volunteer since she was providing ViaView with information about Retzlaff. The court noted that section 527.8 applies to "a volunteer or independent contractor who performs services for the employer at the employer's worksite." (§ 527.8, subd, (b)(3).) It questioned whether the statute applies to Daughter, who lives in a foreign country. ViaView responded that it is an Internet-based company with at least 20 worksites since most of its employees work remotely out of their homes.

         The court reissued the TRO and continued the hearing on the permanent injunction to July 29. The court found that Daughter was a volunteer within the meaning of section 527.8, and it amended the TRO to add Daughter as a protected person. The court also ordered "Retzlaff and all other owners, operators and administrators" of a specified blog to "remove the blog from the internet and cease their campaign of threats, harassment and stalking of Mr. McGibney and not re-post any blogs with similar content."

         B. Service of Petition, Motion to Quash, and Other Court Filings

         Retzlaff was purportedly served on July 14. (The proof of service is not in the record.) On July 21, Retzlaff-who was self-represented-filed a motion to quash on the ground the court lacked personal jurisdiction over him since he lived in either Texas or Arizona at all relevant times and he did not have minimum contacts with California.

         ViaView filed written opposition to the motion. ViaView argued that Retzlaff's contacts with California were prolific, intentional, and repeated, and that by making criminal threats to a California resident, Retzlaff had purposefully availed himself of the forum. ViaView's opposition included a declaration signed by McGibney, which stated that Retzlaff had continued to make threats of violence toward him and his family, but provided little specific information about the alleged new threats. McGibney's declaration was not signed under penalty of perjury under the laws of the State of California as required by section 2015.5.

         On July 21-the same day he filed his motion to quash-Retzlaff filed an ex parte motion to continue the July 29 hearing on the permanent injunction because he had just had abdominal surgery and could not travel for the hearing. The court did not rule on the ex parte motion until July 29, as discussed below.

         On July 25, Retzlaff filed a "Notice... of Perjury... by... McGibney" which asserted that McGibney had lied to the court about his military experience and computer expertise and falsely claimed specialized knowledge to obtain the TRO.

         C. July 29 Hearing on Motion to Continue, Motion to Quash, Anti-SLAPP Motion, and Permanent Injunction

         Motion to Continue--Attorney Katrina Saleen specially appeared at the July 29 hearing on behalf of Retzlaff. Before the hearing, but after filing his motion to quash, Retzlaff had attempted to file a special motion to strike the petition for a workplace violence restraining order under section 425.16, the anti-SLAPP statute. Saleen stated that the court clerks refused to file the anti-SLAPP motion because the ex parte motion to continue was still undecided. Before considering the motion to continue, the court agreed to file the anti-SLAPP motion and indicated that it was prepared to hear it. Although ViaView had not been served with the anti-SLAPP motion, Leiderman said he believed he could argue it that day. The court then denied the motion to continue the hearing.

         Motion to Quash--ViaView (1) urged the court to treat Retzlaff's notice of alleged perjury by McGibney as an answer, (2) requested a finding that the court had jurisdiction over Retzlaff because Retzlaff had filed an answer, and (3) repeated its contention that the court had jurisdiction over Retzlaff because he had directed his conduct at a California resident. After hearing from both sides, the trial court denied the motion to quash in open court. The court "found that the making of the [anti-]SLAPP motion itself constituted a general appearance." Neither the court nor the parties prepared a written order denying the motion to quash.

         Anti-SLAPP Motion--The court then heard the anti-SLAPP motion. It denied that motion orally in open court. The court reasoned that since Retzlaff denied making any threats, there is no speech to protect, and Retzlaff had therefore failed to carry his initial burden of demonstrating that what he said was constitutionally protected.

         Permanent Injunction--At the hearing on the permanent injunction, ViaView presented documentary evidence, but no live testimony. Leiderman asked to be added as a protected person, arguing that Retzlaff had been conflating him with McGibney and encouraging others to file fraudulent lawsuits against him. After the hearing, the court granted a permanent injunction against workplace violence. In addition to McGibney and his family, the order lists Daughter and Leiderman as protected persons. The court also ...


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