Kenneth Chou vs. Jennifer Box

Reply to Opposition

Cal. Super. - 4th Dist.October 21, 2016

Oo 0 J A Ln BA W N N N N N N N N N N E E e m e m e m p m e m em e m c o NN O N Ln PR A W L W N D = OO VL O N Y R A W N D Y = Oo Joel W. Baruch, SBN 85903 Christopher L. Gaspard, SBN 275763 Corey A. Hall, SBN 295470 ELEC THONICALLY FILED Suoo Lee, SBN 280144 HP aunty of Orange LAW OFFICES OF JOEL W. BARUCH, PC DUDE201T at 04-41-00 Fi 2020 Main Street, Suite 900 . ; . Clerk of the Superior Court Irvine, California 92614-8203 By Angelina Mguyen-Do, Deputy Clerk Telephone: (949) 864-9662 Facsimile: (949) 851-3185 Attorneys for Defendant (Special Appearance), JENNIFER BOX SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE KENNETH CHOU, Case No. 30-2016-00882476-CU-DF-CJC Plaintiff, Assigned for all purposes to the Honorable Deborah Servino v. DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS JENNIFER BOX, an individual; and DOES 1 through 25, Defendants. i Hearing Date: January 13, 2017 Time: 10:00 a.m. Dept.: C22 Reservation Number: 72501361 Filed concurrently with the Defendant ’s Evidentiary Objections to Evidence Submitted by Plaintiff; and Proposed Order Date Filed: October 21, 2016 Trial Date: None Set DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS 1 Oo 0 J A Ln BA W N N N N N N N N N N E E e m e m e m p m e m em e m c o NN O N Ln PR A W L W N D = OO VL O N Y R A W N D Y = Oo I. INTRODUCTION Plaintiff’s opposition ignores the fact that he bears the burden of proving that personal jurisdiction exists over Defendant. He has woefully failed to carry that burden. Plaintiff submitted only two declarations that are largely based on hearsay statements and documents that lack foundation and proper authentication—objections set forth in Defendant’s Evidentiary Objections. Perhaps more damaging to Plaintiff’s opposition than its dearth of supporting evidence, is the fact that it fails as a matter of law. Even if Plaintiff’s evidence was admissible, his arguments would not support the exercise of personal jurisdiction. Plaintiff has provided no legal authority to effectively oppose the arguments, evidence, and authority presented in Defendant’s moving papers. As such, this Court lacks personal jurisdiction over Defendant Jennifer Box. Defendant respectfully requests that the Court issue an order granting this motion and quashing the service of summons. II. ARGUMENT A. Plaintiff Chou Bears the Burden of Proof as to the Existence of Jurisdiction. Proving the existence of jurisdiction is always plaintiff’s burden. Therefore, even though defendant is the moving party on a motion to dismiss, the burden is on plaintiff to show valid service within the statutory period. Dill v. Berquist Const. Co., Inc., 24 Cal.App.4th 1426, 1439-1440 (1994). This is true on a challenge to personal jurisdiction by a motion to quash, as in this case. Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal.4th 434, 449 (1996). The plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction. Id. The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint. /n re Automobile Antitrust Cases I & 11, 135 Cal. App.4th 100, 110 (2005). B. Plaintiff Has Failed to Carry His Burden of Proving the Existence of Jurisdiction. Persons domiciled within the forum state when suit is commenced are subject to the personal jurisdiction of local courts even if service of process is made outside the state. Personal jurisdiction DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS 2 Oo 0 J A Ln BA W N N N N N N N N N N E E e m e m e m p m e m em e m c o NN O N Ln PR A W L W N D = OO VL O N Y R A W N D Y = Oo cannot be based, however, solely on the fact that defendant had been domiciled in California at some earlier time. Hoerler v. Sup.Ct. (Hoerler), 85 Cal. App.3d 533, 538 (1978). Notwithstanding this clearly established law, Plaintiff argues: “California clearly has jurisdiction over Defendant in this case. At the time of CHOU’s relationship with Defendant, Defendant was a resident of California and sought to build her acting career in the state.” (Opp. 5:24-27.) Plaintiff’s counsel declares that “Defendant was personally served with the summons and complaint in the State of Texas... .” (Gorde Decl. § 2.) It is undisputed that Defendant has been a resident of Texas since April 2015—well over a year prior to the filing of this action. (Box Decl. { 3.) To the extent that Plaintiff’s opposition argument is based on Ms. Box’ alleged former residence in California, it must be denied. The remainder of Plaintiff’s jurisdictional argument is based on Plaintiff’s hope that this Court will focus on the “effects test” vis-a-vis Calder v. Jones, 465 U.S. 783 (1984). That argument wholly ignores the more recent and relevant authority cited in Defendant’s moving papers. In Walden v. Fiore, 134 S. Ct. 1115 (2014), for example, the Supreme Court reiterated that “mere injury to a forum resident is not a sufficient connection to the forum.” Id. at 1125. Instead, the “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.” Id. Walden makes clear that the personal jurisdiction analysis “looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.” Id. at 1122 (emphasis added). In Burdick v. Superior Court, 233 Cal.App.4th 8 (2015), the Court held that jurisdiction was improper over an Illinois defendant who made allegedly defamatory statements about the plaintiffs, California residents, on the defendant’s Facebook page. Id. at 25. Burdick applied the “effects test” of Calder, 465 U.S. 783, and Walden, 134 S.Ct. 1115. Both Calder and Walden “emphasize the difference between conduct directed at the plaintiff and conduct directed at the forum state itself.” Burdick, 233 Cal. App.4th at 25. Instead of providing authority to contradict Burdick and/or Walden, Plaintiff travels back in time to a Third Circuit case from 1998, arguing that this Court should focus on a three factor test. (Opp. 7:10-20 (citing IMO Indus. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998).) Citing to that DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS 3 Oo 0 J A Ln BA W N N N N N N N N N N E E e m e m e m p m e m em e m c o NN O N Ln PR A W L W N D = OO VL O N Y R A W N D Y = Oo same case, a district court in the Third Circuit explained why that analysis fails in this case: “[ T]he critical inquiry is whether [Defendant] ‘expressly aimed his tortious conduct’ at [Plaintiff] Sugartown in Pennsylvania. IMO Indus., 155 F.3d at 265. We do not consider the other factors if we find Glover did not expressly aim his conduct at the forum. Id. at 266.” Sugartown Worldwide LLC v. Shanks, 2015 U.S. Dist. LEXIS 36495, *13, 2015 WL 1312572 (E.D. Pa. Mar. 24, 2015). Ignoring these cases, Plaintiff argues that personal jurisdiction exists over Ms. Box, a Texas resident, because she “knew that CHOU would suffer the brunt of the harm caused by her tortious conduct in California and that [she] intentionally targeted CHOU, who resides and does business in California, . . ..” (Opp 7:22-25.) It is clear that even if Plaintiff proffered admissible evidence to establish these facts, which he has not, it would fail to establish personal jurisdiction because Ms. Box’s alleged acts were directed at Plaintiff Chou, who happens to reside in California. Her alleged conduct was never directed at California, itself. See Burdick, 233 Cal.App.4th at 25. Additionally, Plaintiff has proffered no evidence to support his contention that the “convenience factors” weigh in his favor. (Opp. 8:4-10.) Quite the contrary, if it is true that Defendant had actually recruited her Texas friends to attack Plaintiff’s social media sites, it would seem that Texas would be a more fitting forum. Finally, Plaintiff argues that personal jurisdiction is appropriate because it would comport with “fair play and substantial justice.” (Opp. 8:20-25.) This assumes that Plaintiff’s narrative is true. It fails to acknowledge Defendant’s position—that she was raped by Plaintiff. It hardly seems to promote “fair play and substantial justice” to allow an alleged rapist to sue his alleged victim and make her travel halfway around the Country to defend herself. III. CONCLUSION Plaintiff has failed to carry his burden of proving that personal jurisdiction exists over Defendant. He submitted only two declarations—one personally, and one from his attorney—that are largely inadmissible. But even if Plaintiff’s declaration testimony and exhibits were admissible, Plaintiff’s arguments fail as a matter of law. Plaintiff has provided no authority to effectively oppose the arguments and evidence presented in Defendant’s moving papers. DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS 4 NO 0 N I N nn W N DN O D N ) e t mm mm r t e d e m e t pe e k e d BE R B I R EV RI YP EE SE TST I a c d o o = o As such, this Court lacks personal jurisdiction over Defendant Jennifer Box. She thus respectfully requests that the Court issue an order granting this motion and quashing the service of summons. Respectfully submitted, Dated: January 6, 2017 Law O Christopher L. Gaspard Attorney for Defendant, JENNIFER BOX DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS 5 No 0 Na N l EA W N ee N O N N N N N em e m e m e m em p d mk e d e m PROOF OF SERVICE I am employed in the county of Orange, State of California at THE LAW OFFICES OF JOEL W. BARUCH. I am over the age of 18 and not a party to the within action; my business address is 2020 Main Street, Suite 900, Irvine, CA 92614. On January 6, 2017, I served the foregoing documents described as DEFENDANT'S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS on the interested parties in this action by placing a true copy thereof enclosed in sealed envelope(s) addressed as follows: Thomas L. Gourde RAY & GOURDE, LLP 111 Pacifica, Suite 120 Irvine, CA 92618 Tel: (949) 825-6520 Fax: (949) 825-6544 Attorney for Kenneth Chou XX BY MAIL: I enclosed the documents in a sealed envelope or package addressed to the persons listed above and (1) deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid, or (2) placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. XX BY ELECTRONIC SERVICE VIA ONELEGAL EFILING SERVICE: I served the above-entitled document(s) through the OneLegal E-Filing Service at www.onelegal.com addressed to all parties appearing on the electronic service list for the above-entitled case. A copy of the One Legal Service Receipt Page/Confirmation will be maintained with the original document(s) in this office. BY OVERNIGHT DELIVERY: I enclosed the documents in a sealed envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses indicated above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. BY FAX TRANSMISSION: Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax number of the parties indicated above. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. BY PERSONAL SERVICE: I personally delivered the documents to the persons at the addresses indicated above. (1) For a party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by leaving the documents at the attorney’s office, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office; or (c) if there was no person in the 1 POS x A W N ee o o 10 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 office with whom the notice or papers could be left, by leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party’s residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening. BY MESSENGER SERVICE: I served the documents by placing them in an envelope or package addressed to the persons at the addresses indicated above and providing them to a professional messenger service for service. BY EMAIL TRANSMISSION: I caused the aforementioned document(s) to be served via electronic mail to the electronic addressee(s) listed on the attached mailing list. Such document was transmitted successfully from my e-mail address to the indicated addressee(s). I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on January 6, 2017, at Irvine, California. (A HA Amy Land , Declarant POS