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Deputy Sheriff

Plaintiff Counsel


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Defendant Counsel


Motion to Quash has been argued and taken under submission by the Court on July 10, 2012. After consideration, and pursuant to its written ruling, the Court makes the following orders: The Motion to Quash is granted and the action is ordered dismissed. The Court's written ruling, now its final ruling regarding this matter is attached to this mintue order for reference and is placed in the court file. CLERK'S CERTIFICATE OF MAILING I, the below-named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not: a party to the cause herein, and that on this date I served the Minute Order upon each party or counsel named below by placing the document for collection and mailing so as to cause it to be deposited in the United States mail MINUTES ENTERED 07/16/12 COUNTY CLERK


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Gary Kurtz v. David Bernis LC 095923 Findings and Order of Dismissal based on lack of personal jurisdiction over defendant On July 10, 2012, this matter came before the court for a hearing on defendant's motion to quash service of process for lack of personal jurisdiction. The court took the matter under submission. The court now grants the motion and dismisses the action. Facts On December 30, 2011, plaintiff Gary Kurz filed a complaint for damages and injunctive relief for defamation, false light/invasion of privacy and unfair business practices. Plaintiff is a resident of California; defendant resides in New York and according to the complaint, publishes defamatory communications calculated to reach audiences and cause damages to plaintiff in California and other states. Complaint, Para. 1,2. Defendant allegedly published on the internet and republished on a daily basis at and linked page, defamatory information set out in the complaint at paragraph 7. Plaintiff alleges that he has suffered business and personal losses as a result of the published information. On May 9, 2012, defendant filed a motion to quash service, arguing that the court lacks personal jurisdiction over him. In support of the motion, defendant filed a Declaration of David Bernis which establishes: 1) defendant does not reside in California nor does he own property in California; 2) defendant has no business interests in California and has not visited the state in the last 30 years; 3) defendant does not create the content on the website,; 4) defendant did not know of plaintiff prior to the filing of the instant lawsuit; 5) defendant is a provider of the URL digital identifier that translates into on the internet. In response to the Declaration of David Bernis, plaintiff filed the Declaration of Gary Kurtz which primarily addresses the damages that plaintiff has suffered in California as a result of the publication of the allegedly defamatory information. In particular plaintiff declares that his relationship with his three teenaged children has been damaged because they have seen the website as has his relationship with several "ladies" who have declined to date him because of what they have seen on the website. Attached to the Declaration are printouts from the website which refer to plaintiff as, among other things, a degenerate sex addict reprobate, and impugns his professional experience. The website provides links to other websites with, presumably, negative information about plaintiff.

California courts may exercise personal jurisdiction on any basis consistent with the Constitution of California and the United States. CCP §410.10. Exercise of jurisdiction over a nonresident defendant comports with these Constitutions if the defendant has such

minimum contacts with the state that the assertion of jurisdiction does not violate traditional notions of fair play and substantial justice. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (internal citations omitted).) Under the minimum contacts test, personal jurisdiction may be either general or specific. (Snowney v. Harrah 's Entertainment, Inc (2005) 35 Cal.4th 1054, 1062.) When considering whether specific jurisdiction exists, courts consider the relationship among the defendant, the forum, and the litigation. A court may exercise jurisdiction over a nonresident defendant only if: 1) the defendant has purposefully availed himself or herself of forum benefits; 2) the controversy is related to or arises out of the defendant's contacts with the forum; and 3) the assertion of personal jurisdiction would comport with fair play and substantial justice. The first requirement, "purposeful availment," focuses on the defendant's intentionality; it is satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction based on his contacts with the forum. (Pavolich, supra, 29 Cal.4th at 269.) When a defendant moves to quash service of process for lack of specific jurisdiction, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. If plaintiff meets this initial burden, then the defendant has the burden of demonstrating that the exercise of jurisdiction would be unreasonable. (Id. at 273). Whether personal jurisdiction over a nonresident can be based solely on Internet activities depends on the nature and qualify of the acts mvolved^~(Snowney, "supra, 33 Cal.4th at 1062-64.) Posting information on a passive Internet site accessible to forum residents is not an act "directed at the forum state," and thus not enough for the exercise of local personal jurisdiction. Mere foreseeability that the posting will have an effect in the forum state is not sufficient to confer personal jurisdiction. Instead, plaintiff must show intentional conduct by defendant expressly aimed at or targeting the forum state in addition to the defendant's knowledge that his intentional conduct would cause harm in the forum. (Pavolich, supra, 29 Cal.4th at 271.) If the website is interactive, the exercise of jurisdiction must be determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site. (Jewish Defense Organization, Inc. v. Sup. Ct.(Rambam) (1999) 72Cal.App.4 th 1045, 1060.) Analysis At issue is whether defendant's website supports the assertion of personal jurisdiction over defendant. In this action plaintiff appears to be asserting specific jurisdiction only. The court finds that the website is not interactive. It is the passive posting of information. Defendant is not the author of the contents of the website; he is simply the registrant of the URL address. There is nothing about the contents of the postings, based on the

attacllments to the Declaration of Gary Kurtz, that supports the proposition that defendant expressly aimed or targeted his defamatory publications at the state of California. Since plaintiff resides and works in California defendant may have foreseen that the contents of the website would be felt by plaintiff in California. However, that knowledge alone does not satisfy the other requirement, to wit, that defendant expressly aim or target his defamatory publications at the forum state. This case appears to be at the extreme end of the spectrum described Pavolich, supra, at 274, where a defendant has simply posted information on an Internet website which is accessible to users in foreign jurisdictions. Since there is no evidence of express targeting, there is no basis to assert specific personal jurisdiction over defendant. Therefore, the motion to quash is granted and the action is ordered dismissed. IT IS SO ORDERED.

July , 2012
MARIA E. STRATTON Judge of the Superior Court

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