Ralph M Watson vs Diet Madison Avenue Et Al

Reply to Defendants Opposition to His Motion Deeming that General Appearances Were Made

Cal. Super. - 2nd Dist.May 22, 2018

Electronically FILED by Superioff Court of California, County of Los Angeles on 01/25/2019 02:32 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Miro,Deputy Clerk 1 |IMICHAEL W. A YOTTE (SBN 145576) LAW OFFICES OF MICHAEL W. AYOTTE 2 [12629 Manhattan Avenue, Suite 144 Hermosa Beach, CA 90254 3 1|(310) 343-1864 Email: mayotte@clientfirstlegalsolutions.com Attorney for Plaintiff 5 [|RALPH M. WATSON 8 SUPERIOR COURT OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 11 [{RALPH M. WATSON, an individual Case No.: BC 707278 12 [Assigned for All Purposes to the Hon. Monica Plaintiff, Bachner] 1:3 VS. PLAINTIFF'S REPLY TO DEFENDANTS’ OPPOSITION TO HIS MOTION FOR AN ORDER DEEMING THAT GENERAL APPEARANCES WERE MADE BY DEFENDANTS DIET MADISON AVENUE AND DOE 3, OR IN THE ALTERNATIVE, FOR AN ORDER DEEMING THEM SERVED PURSUANT 14 DIET MADISON AVENUE, an unknown 15 |lentity; JANE DOE 1, an individual; JANE 16 DOE 2, an individual; and DOES 3 through 100, inclusive, 17 Defendants. TO C.C.P. § 413.30 18 18 Date: February 1, 2019 Time: 8:30 a.m. 20 Dept: 71 21 Action Filed: May 22, 2018 e r N r N r N r N w N r N N a 22 2:3 24 25 26 27 28 1 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 TABLE OF CONTENTS Page INTRODUCTION. Lc eee eee eee eee 1 SUMMARY OF ARGUMENT... 1 LEGAL ARGUMENT Looe 2 I. Defendants’ Motions Are General Appearances Because They Did Not Solely Challenge Personal Jurisdiction..............c.ccooeiiiiiiiiiiiniinnnnn 2 2: Specific Authority That Defendants’ Acts Are General Appearances....... 5 3. None of the Cases Cited by Defendants Distinguishes the Authorities Provided by Plaintiff. ......... cocoon 6 4. Even if the Court Rules That Defendants Did Not Make General Appearances, it Should Order Defendants Served Pursuant to CCP § 413.30. iii 9 CONCLUSION. Lc 10 i PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 TABLE OF AUTHORITIES Cases: Page 1800 Corp v. Superior Court (1962) 57 Cal.2d 840. .....uniieiiii eee 6,7 Ahrens v. Naftzger (1941) 42 Cal. APP.2d 738. eee 8 Am. Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal. APP-3d 579. cee 8 Berard Construction Co. v. Municipal Court (1975) A9 Cal. APP. SU. TL 0x4 55 5 ssmomansss 555 saiwsimstss s #5 paamsnsss § § 5 SAREDEE § 5 § 5 FAATHRDS 7,8 California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346... cei 1,2,3 Dial 800 v. Fesbinder (2004) L118 Cal. App. 4th 32 oe 4,6,8 Fireman's Fund Ins. v. Sparks Constr. (2004) 114 Cal. App.4th 1135 oo 2 Goodwine v. Superior Court (1965) 63 Cal.2d 481... ene 8 Greener v. WCAB (1993) 6 ICaLAth TORE. : snows ss 55 sass ss 5 nancmnas si 55 Amsmnts i 1 §5 SAMTHwES1 §5 5 A085 2,3,7 In re Marriage of Lemen (1980) 113 CalLAPP.3d 769... eee 5,6 Loftin v. Superior Court (1971) 19 Cal. APP.3d 577 eee eee 8 Mansour v. Superior Court (1995) 38 Cal. App. 4th 1750... eee ee 5,6 Mercury Cable & Energy, Inc. v. Chen (C.D. Cal. Jan. 7, 2013) Case No. SA CV 12-1857-DOC (ANX)....cccevvvrennnn.. 10 Mode Media Corp. v. Doe NLD Cal. Jan, 15, 2016) 3:1 6-ov-002440R8. . ; ; conuon vs:5 5 sommes v5 5 6 smn 55 5s samons 10 ii PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 Mullane v. Central Hanover Bank & Trust Co. (1950) U.S. 300... eee eee 10 Olsece v. Justice's Court (1909) 156 Cal. 82... 3,4 Pease v. City of San Diego (1949) 93 Cal.LAPP.2d 706....c.oneeiie ieee 8 Remsberg v. Hackney Manufacturing Co. (IL Ty TTA Cals TOD snirmnn 155 3 nncinsus 5. v5 8 580080000 8 £13 55 SARIS 565 53 BASRELLS § £1 § 3 SARAES £45 53553 3 Ruttenberg v. Ruttenberg (1997) 58 Cal AEA BO swe so 1« sommes » 1 15 sms v1 5 sspsonssss v1 1 5 ssmsosmssns ¢ ¢ 11 suas 9 Wilson v. Barry (1951) 102 Call APP.2d 778. occ 5 Statutes: CaCl § LTT e 7 CGP § TTB 55 5 samc xs 13 basins s 55 5 sammunss £55 4 bARESRES § 5 5 3 SARGERAS | 1 § 5 BAREHHES E55 SARTHBES 53 55 8 CCPL § AOS miss rx ssmmmmmens ss 5 woomomns 53 5 sommes £455 5 SEmanss s 655 5 SUSEEES § 4 3 § RSWSEHES 8 § 3 § SES 2,9 CIEPs § lB ssn 4 1.» sussomosanie 1 1.5 sss 14 # smasumsncn 11 15 somssmnencs 51 4 s NEEER ¥ 2 1 & SOEATHERS ¥ 11 § SEES. 9,10 CCP. §AL8.10(A) (2). eneeeneneeeee eee 1,4,7 CCP. §AL8.10(A)(3) cuvette eee eee ee 1,4,8 CLClP. § 581a oii, 8 GLCP. § 1087 Lee 2 CGP § 2025420. somos r x15 uamommes s 0 55 smopomnz 01 5s somone 035 56 Semmes o 11) 5 WRES 53 § 5 § EORHOE LE 175 63 2 iii PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 A. INTRODUCTION Defendants are actively hiding their identities. In order to serve the summons through traditional channels, Plaintiff needs to discover the identities of the anonymous persons behind the DMA Instagram account that he alleges defamed him. On July 30, 2018, this Court granted Plaintiff leave to serve court-reviewed and court-approved business records’ subpoenas on Instagram, Facebook and Alphabet. These subpoenas have now brought Defendants into court. On September 12, 2018, Defendants filed two motions to quash the court-approved subpoenas. Because these first appearances do not solely challenge that the court has personal jurisdiction over them, Plaintiff contends that the Defendants have made general appearances, subjected themselves to the court’s jurisdiction, and have now been effectively served with summons. B. SUMMARY OF ARGUMENT It is well-settled under longstanding California law that a party making a “special appearance” may do so solely to challenge the court’s personal jurisdiction over it. (California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 352; see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52-54 [general survey of California court decisions for the proposition that “a party who seeks relief on any basis other that a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process, or personal jurisdiction”].) A party whose appearance seeks any other relief on any other basis will be deemed to have made a general appearance and waived all objections to the court’s personal jurisdiction. (California Dental Assn., supra, at p. 352.) The only exceptions to this longstanding rule are (1) the express statutory exemptions set forth in C.C.P § 418.10(a)(2) [motion to stay or dismiss on ground of inconvenient forum] and § 418.10(a)(3) [motions for mandatory dismissals for lack of prosecution]; or (2) where any other non-jurisdictional relief requested is ancillary or incident to the underlying personal jurisdiction challenge and it would be patently unfair to the party if deemed a general appearance. (See section C.3 below.) 111 1 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 Nothing in Defendants’ opposition distinguishes any of the persuasive authority provided by Plaintiff. Instead, all the cases relied on in the opposition involve situations where the “specially appearing” party’s appearance clearly fall within the two exceptions to the general rule, i.e., involve non-jurisdictional requests for relief that are ancillary or incident to an underlying challenge going solely to personal jurisdiction (or an express statutory exemption). Of course, that is not the situation with the appearances made by Defendants, because neither motion solely challenges personal jurisdiction, or raises any issue related to a specific statutory exemption.! Instead, Defendants have made general appearances by filing notices of motions and motions that raise and argue purely non-jurisdictional issues. C. LEGAL ARGUMENT Plaintiff does not dispute that a party may make a “special appearance” to challenge personal jurisdiction, but the law is clear that such an appearance must be limited to that sole issue. (See California Dental Assn., supra, at p. 351-352; Greener v. WCAB (1993) 6 Cal.4th 1028, 1037 [“if the movant seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance”].) Raising any other issue, however, will result in that appearance being deemed general. (/d.) And it is axiomatic that a general appearance acts “as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.” (Fireman's Fund Ins. v. Sparks Constr. (2004) 114 Cal.App.4th 1135 1145; see also C.C.P § 410.50(a) [“A general appearance by a party is equivalent to personal service of summons on such party.”].) 1. Defendants’ Motions Are General Appearances Because They Did Not Solely Challenge Personal Jurisdiction Defendants filed two related motions to quash the court-ordered subpoenas and/or seek ! As noted in Plaintiff’s motion, the only possible jurisdictional issue is raised in a footnote to the Gordon Rees Motion, where it was erroneously argued that Defendant DMA is “not a jural entity and accordingly is specially appearing.” (GR Motion, p. 2, fn. 1.) Plaintiff disputed this contention in his motion, but Defendants have failed to address any of his authorities and arguments in their opposition. (Pl. Mot., pp. 3:23-27, 7:1-8:20.) Regardless, this “jurisdictional” challenge is just a very small part of the motion and the vast majority of the motion argues purely non-jurisdictional issues. 2 PLAINTIFF'S REPLY 3 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 protective orders pursuant to C.C.P. § 1987.1 and C.C.P. § 2025.420. Neither of these statutes have anything to do with personal jurisdiction, but are instead procedures to challenge propounded discovery and/or limit discovery; thus, they are seeking relief on a basis other than a purely jurisdictional challenge and are deemed as a matter of law to be general appearances. (Greener, supra, 6 Cal.4th at p. 1037 [“if the movant seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance”].) Neither motion is solely challenging the court’s personal jurisdiction; instead they are actively arguing issues that have nothing to do with jurisdiction, i.e., arguing that Plaintiff has failed to establish a prima facie case of defamation and raising the affirmative defense that the statements were protected by the common interest doctrine. The California Supreme Court in California Dental could not have been clearer on the rule that a special appearance must only address personal jurisdiction: It is well settled that ‘if a defendant wishes to insist upon the objection that he is not in court for want of jurisdiction over his person, he must specially appear for that purpose only, and must keep out for all purposes except to make that objection’ (Olsece v. Justice’s Court (1909) 156 Cal. 82, 87); otherwise, he waives ‘any right [he] may have to insist that jurisdiction of his person has not been obtained.’ (Remsberg v. Hackney Manufacturing Co. (1917) 174 Cal. 799, 801.) (California Dental Assn., supra, 23 Cal.3d 346, 352.) Defendants allege, without citation, that Plaintiff is arguing that “because the DMA Defendants admitted they are parties,” that by itself is “enough to confer a general appearance.” (Opp., p. 12, fn. 4.) They conclude such a finding “would upend a century of jurisprudence on personal jurisdiction.” (/d.) This of course is not what Plaintiff is arguing; instead, it is the act of the unserved party coming into court for any reason other than challenging personal jurisdiction that makes that appearance a general one. In fact, over a century of jurisprudence goes directly against Defendants’ position, for the reasons set forth by the Supreme Court in Olsece in 1909: Pleas based upon lack of jurisdiction of the person are in their nature pleas in abatement and find no especial favor in the law. They amount to no more than the declaration of the defendant that he has had actual notice, is actually in 3 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 19 20 21 22 2:3 24 25 26 27 28 court in a proper action, but, for informality in the service of process, is not legally before the court. It is purely a dilatory plea, and when a defendant seeks to avail himself of it, he must, for very obvious reasons, stand upon his naked legal right and seek nothing further from the court than the enforcement of that right. He will not be heard to ask of the court anything further that an adjudication upon his plea, and if he does ask anything further, then, by logic of the fact, he must necessarily have waived the irregularity of his summons before the court. Here is one reason for the well-settled rule that if a defendant wishes to insist upon the objection that he is not in court for want of jurisdiction over his person, he must specially appear for that purpose only, and must keep out for all purposes except to make that objection. Another reason equally valid, is that if such defendant shall ask for any relief other than that addressed to his plea, he is seeking to gain an unconscionable advantage over his adversary, whereby, if the determination of the court be in his favor he may avail himself of it, while, if it be against him, he may fall back upon his plea of lack of jurisdiction of the person. So it is well settled that if a defendant, under such circumstances, raises any other question, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general, though termed special, and he thereby submits to the jurisdiction of the court as completely as if he had been regularly served with summons. (Olcese, supra, 156 Cal. 82, 87-88.) These foundational principles have remained unchanged and have been followed by California courts, including the Supreme Court, through the present, as fully set forth in Plaintiff’s motion and this reply. (See Dial 800 v. Fesbinder, supra, at pp. 52-54 [general survey of California court decisions].) As noted above, the only exceptions to this general rule are the narrow statutory exemptions of C.C.P. § 418.10(a)(2)-(3), or when the other requested relief is ancillary or incident to an underlying challenge relating solely to personal jurisdiction, none of which apply to these Defendants’ appearances. (Id. at p. 54.) Defendants’ actions and arguments in claiming the motions are “special appearances” are very similar to those disfavored by the California Supreme Court in Olsece. Here, Defendants chose to remain in hiding, despite having actual notice of the hearing, while Plaintiff brought his July 30 application requesting court approval to serve subpoenas seeking their identities. Only after that ruling went against them, did they come into court seeking the non-jurisdictional relief of quashing the subpoenas. Despite their contentions, Defendants are not being denied an opportunity to argue their case, or protect their identity, they are just being 4 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 required to do so as a served party, because they have failed to object solely to personal jurisdiction at their first appearance. (Opp., p.7:2-19.)? Defendants’ opposition also attempts to argue that because the discovery statutes allow non-parties to challenge discovery, a party making a similar challenge, should be allowed to do so as a special appearance. (Opp., pp. 11:25-12:7.) This argument is a red herring as the issue before this Court is whether an unserved party has made a general appearance. It is the underlying reason for the appearance by an unserved party that is determinative - whether it solely challenges personal jurisdiction - not whether the statute being challenged has provisions also available to a non-party, which is irrelevant to such determination. Further, courts have found that general appearances were made involving discovery issues, when the discovery in question was unrelated to the issue of jurisdiction. (See Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1757 [by initiating deposition subpoenas unrelated to the issue of jurisdiction, a doctor made a general appearance]; In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 779 [non-party witness who filed discovery motion objecting to jurisdiction, but also sought other relief, including requesting attorney fees, made a general appearance]. 2. Specific Authority That Defendants’ Acts Are General Appearances As demonstrated above, Defendants’ motions must be deemed general appearances based on the overwhelming controlling California authority provided by Plaintiff. However, many of the acts taken by the Defendants have also been specifically found by courts to be general appearances. For instance, Defendant Doe 3’s sworn declaration in support of the Arnold & Porter Motion, by itself, constituted a general appearance according to the holding of Wilson v. Barry (1951) 102 Cal. App.2d 778, 781. The Wilson court held that “the filing of an affidavit, other than for the purpose of presenting matters bearing on the court’s jurisdiction, constitutes a general appearance.” (Id.) It is undisputed that Defendant Doe 3 did not raise any jurisdictional matters in either motion. He or she did, however, admit that “I am one of the defendants in the above-captioned action and the movant,” authenticated the defamatory ? Plaintiff, of course, does vigorously contest Defendants’ motions to quash the subpoenas for all the reasons set forth in his opposition and other supporting papers to those motions. 5 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 statements, and denied having any role in writing or posting the posts. (Declaration of Doe 3 in Support of AP Motion, 9 1-4.) In addition, the court in Dial 800 held that a request for attorney fees was a general appearance because it was “an affirmative request for relief” that was “entirely unrelated to personal jurisdiction issues.” (Dial 800, supra, at p. 54.) Here, Defendants’ request for attorney’s fees as sanctions are clearly a general appearance. Their reliance on Berard Construction Company v. Municipal Court (1975) 49 Cal.App.3d 710, is easily distinguishable, as discussed more fully below, because the fees requested there were ancillary to a specific statutory exemption under C.C.P. §418.10(a)(2) (inconvenient forum). (Id; Opp., p. 13:12-27; see section C.3 below.) 3. None of the Cases Cited by Defendants Distinguishes the Authorities Provided by Plaintiff As set forth above, all the cases relied on by Defendants involve situations where the “special appearances” were appearances that otherwise would be general that were found to be special because they were “ancillary” or “incident” to a challenge solely to personal jurisdiction or a statutory exemption. The rationale for these cases is based on rectifying any inherent unfairness that would occur as a result, as discussed more fully below. However, in all of these types of cases there existed an underlying motion that solely challenged personal jurisdiction or was statutorily exempt. For instance, Defendants cite to 1800 Corp v. Superior Court (1962) 57 Cal.2d 840 for the erroneous proposition that courts “have repeatedly held that invoking statutory rights to object to discovery does not constitute a general appearance.” (Opp., p. 10:15-17.) Instead, the 1800 Corp case demonstrates the limited exception to the general rule because the discovery in question was wholly ancillary to a personal jurisdiction challenge.’ In 1800 Corp, the defendant specially appeared in the case and “move[d] to quash service of summons upon the ground the 3 The Mansour and In re Marriage of Lemen cases discussed above in section C.1 above (at p. 5:9-15), both found motions related to discovery to be general appearances. As discussed above, the fundamental issue is whether the ancillary discovery was related to an underlying motion that solely challenged personal jurisdiction. 6 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 court lacked personal jurisdiction.” (Id. at p. 842.) Thus, the underlying motion was solely directed at whether the court had personal jurisdiction. The plaintiff served interrogatories that were also limited “to ascertain facts relating to the question of jurisdiction.” (Id.) The court compelled that limited discovery as to personal jurisdiction, but allowed the defendant to make objections to the discovery that required them to respond to issues other than jurisdiction. (/d. at p. 843.) In allowing the defendant to object to the discovery, an action that would otherwise be deemed a general appearance, the court held that “objections to interrogatories upon the ground they are oppressive, made during the pendency of a motion to quash [service of summons], do not constitute a general appearance.” (Id. [emphasis added].) In other words, the discovery at issue was ancillary to the underlying motion to quash service of summons, which went solely to challenge personal jurisdiction. Of course, in the instant case, Defendants’ motions are not solely challenging personal jurisdiction, but are instead seeking other relief from the court, and as such are general appearances. (See Greener v. WCAB (1993) 6 Cal.4th 1028, 1037 [“if the movant seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance”].) Defendants’ motions go directly to the merits of the case, by arguing whether Plaintiff can establish a prima facie case of defamation, arguing the affirmative defense of the common interest privilege, and requesting sanctions. These arguments have absolutely nothing to do with the court’s personal jurisdiction over them and are in no way ancillary to any underlying jurisdictional challenge. Defendants also argue that their request for attorneys’ fees are not general appearances because of the holding in Berard Construction Co. v. Municipal Court (1975) 49 Cal.App.3d 710. (Opp., p-13:12-23.) However, the Berard case, like 1800 Corp, involved an underlying challenge on the ground of an inconvenient forum, which is one of the very few limited statutory exemptions to an otherwise general appearance. (See C.C.P. § 418.10(a)(2); Berard, supra, at p. 713-714.) The court specifically noted “[t]his exempt status of defendants’ inconvenient forum motion is the underlying factor which impels us to disagree” with the lower court’s finding that defendant’s request for C.C. § 1717 attorney fees was a general appearance. 7 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 (Id., at p. 715.) Because the attorney fee request was “an appropriate incident to” the “main motion, which is statutorily deemed not a general appearance,” it “did not deprive the [main] motion of its exempt status.” (/d. at pp. 717, 719.) Of course, in the instant case the request for attorney’s fees is not incident to a motion solely seeking to challenge personal jurisdiction or an “exempt” motion, and is therefore not ancillary or incident to such a motion. Thus, both the underlying motion to quash the subpoenas and the request for attorney’s fees, either independently or together, are general appearances. (See Dial 800, supra, p. 54 [request for attorney fees that was unrelated to personal jurisdiction are a general appearance]; see discussion in section C.2 above.) Similarly, Loftin v. Superior Court (1971) 19 Cal.App.3d 577, involved a party who “specially appeared for the purpose of moving to quash summons” and also disqualified the judge set to hear the underlying personal jurisdiction motion via an ancillary C.C.P. § 170.6 motion. (/d., at p. 578-579.) Noting the “most unfair situation” that would result by deeming the ancillary motion a general appearance, the court instead chose to apply the ancillary exception to the general rule because the underlying motion solely challenged jurisdiction. (/d. at p. 579.) The Loftin court also cited to Goodwine v. Superior Court (1965) 63 Cal.2d 481, another case relied on by Defendants, which also involved an underlying motion solely challenging personal jurisdiction; yet another example of the ancillary exception to the general rule. (Loftin, supra, at p. 580.) For similar reasons, Pease v. City of San Diego (1949) 93 Cal.App.2d 706, is also easily distinguished, as the sole motion at issue, a motion to dismiss for delay in prosecution under former C.C.P. § 581a, was “jurisdictional” and the sole “ground stated was that the defendant city was not properly before the court ...” (Id. at pp. 709-710.) The holding in Pease under former section §581a would be the same under the present statutory exemption of C.C.P. § 418.10(a)(3) (dismissals for delay in prosecution). Finally, Defendants’ citations to undiscussed and immaterial dicta in the cases of Am. Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal. App.3d 579 and Ahrens v. Nafizger (1941) 42 Cal.App.2d 738, for the proposition that “other California courts have summarily found that a motion to quash a subpoena is only a special appearance,” are misplaced and do not stand for 8 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 any such proposition. (Opp., p. 11:18-24.) It appears that Defendants merely did a search for the terms “motion to quash subpoenas” and “special appearance” to find these cases, because nothing in either case discusses any of the issues before this Court, or remotely holds that a motion to quash a subpoena is a special appearance. None of the caselaw presented in the opposition supports a finding that Defendants’ motions are special appearances. Rather, they fall squarely within the general rule because they are not solely challenging personal jurisdiction, nor are they ancillary to any underlying motion doing so. Because of this, they are general appearances. By making general appearances, Defendants are not denied their day in court; rather, Plaintiff is being given an opportunity to fairly prosecute his case by being allowed to conduct discovery on their allegations, arguments and defenses. 4. Even if the Court Rules That Defendants Did Not Make General Appearances, it Should Order Defendants Served Pursuant to C.C.P § 413.30 Defendants argue that actual notice is not enough to effectuate service and that “[u]ntil statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Opp., p. 14:6-7, citing Ruttenberg v. Ruttenberg (1997) 53 Cal. App.4th 801, 808.) As argued above, a general appearance also acts as service of summons. (See C.C.P. § 410.50.) In the alternative, this Court can also easily meet those “statutory requirements” by either issuing an order deeming Defendants served under the provisions of C.C.P. § 413.30, or by allowing Plaintiff to effectuate such service by mailing or emailing copies of the summons and complaint to Defendants’ attorneys pursuant to the statute. That statute specifically allows the court to “direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court.” (C.C.P. § 413.30 [emphasis added].) Actual notice will be guaranteed because the Defendants, through counsel, are actually before the Court. Plaintiff has been unable to serve Defendants by traditional methods because they are actively hiding and admit they have “no office, website, or phone number.” (AP Motion, p. 9:11.) Further, even Plaintiff’s request to serve by publication was denied by the court on 9 PLAINTIFF'S REPLY 10 11 12 1:3 14 15 16 17 18 1.9 20 21 22 2:3 24 25 26 27 28 August 6. Defendants provided no argument or authority in their opposition against service of summons being permitted under C.C.P. § 413.30, and such service will meet statutory requirements so that the case can proceed on the merits. Numerous federal courts interpreting C.C.P. § 413.30 have permitted service of summons by other means where traditional methods are unavailable, and those means are reasonably calculated to provide actual notice to the defendant. In Mercury Cable & Energy, Inc. v. Chen (C.D. Cal. Jan. 7, 2013) Case No. SA CV 12-1857-DOC (ANXx), the court found if “a defendant’s whereabouts are ascertainable, notice must be given through a procedure that has a reasonable probability of actually reaching him or her.” (/d. at *2, citing Mullane v. Central Hanover Bank & Trust Co. (1950) U.S. 306, 318.) Because the plaintiff was unable to serve defendants by other means, the federal court permitted service by U.S. mail and email and found such service satisfied due process and the statutory requirements of C.C.P. §413.30. (/d. at *3; see also Mode Media Corp. v. Doe (N.D. Cal. Jan. 15, 2016) 3:16-cv-002440RS [allowing alternate service by a privacy protection proxy service satisfied C.C.P § 413.30].) (Courtesy copies of the Mercury Cable & Energy and Mode Media Corp. cases are attached hereto for the Court’s convenience.) Defendants DMA and Doe 3 are now before the Court and admit they are parties to the action. Allowing alternative service through C.C.P § 413.30 will provide actual notice and meet the statutory requirements of service of summons. D. CONCLUSION For all the foregoing reasons, Plaintiff respectfully requests that this Court deem that general appearances were made by Defendants in filing and arguing their motions, or in the alternative, to order them served pursuant to C.C.P. § 413.30. Dated: January 25, 2019 LAW OFFICES OF MICHAEL W. AYOTT By: a MICHAEL W. AYOTTE Attorneys for Plaintiff RALPH M. WATSON 10 PLAINTIFF'S REPLY Courtesy Copies of Federal Court Cases Mercury Cable & Energy, Inc. v. Chen, Case No. SA CV 12-1857-DOC (ANx) (C.D. Cal. Jan. 7, 2013) Case No. SA CV 12-1857-DOC (ANx) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Mercury Cable & Energy, Inc. v. Chen Case No. SA CV 12-1857-DOC (ANx) (C.D. Cal. Jan. 7, 2013) Decided January 7th, 2013 DAVID O. CARTER CIVIL MINUTES - GENERAL PRESENT: THE HONORABLE DAVID O. CARTER , JUDGE ome + Julie Barrera {Not Present | +---------------- domme eee | ICourtroom Clerk |Court Reporter] +----=--=========-=-momommeeo + ATTORNEYS PRESENT FOR PLAINTIFFS: NONE PRESENT ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT PROCEEDING (IN CHAMBERS): PLAINTIFF'S EX PARTE APPLICATION FOR APPROVAL OF ALTERNATIVE SERVICE AND FOR ENTRY OF DEFAULT Before the Court is Plaintiff Mercury Cable & Energy, Inc.'s Ex Parte Application for Order Approving Al- ternative Service and Entry of Default (Dkt. 11). The Court finds the matter appropriate for decision with- out oral argument. Fed R. Civ. P. 78; Local R. 7-15. \ ,casetext \ NZ ¢ After consideration of all moving papers, the Court GRANTS IN PART and DENIES IN PART Plaintiff's request. I. Background Plaintiff Mercury filed an amended complaint in this action naming, inter alia, Wang-Chen (aka Martin Wang) and Tammy Wang (aka Tammie Xiu) as indi- vidual defendants. According to declarations provided by Plaintiff, Mercury has attempted twelve (12) times to personally serve the Wangs at their residence at 18 Stonebrook, East Irvine, CA 92620. See Affidavit of Reasonable Diligence, attached to Bacani Decl. (Dkt. 11-2) at Ex. A. At one point, the process server, Ms. Alexandra Suarez, spoke with the Wang's daughter, who appeared to be around sixteen (16) years of age. The daughter told Ms. Wang that her father was out of the country and that Ms. Suarez could speak with the mother, Tammie Wang, if she came back later that day. However, when Ms. Suarez returned to the resi- dence, no one answered the door. See id. Each time she returned to the home after that, no one answered. See id. After the attempts at personal service of the Wangs were unsuccessful, Mercury's counsel sent conformed copies of the Summons, Complaint, Civil Cover Sheet, Notice of Assignment, Certification as to Inter- ested Parties, Notice to Parties of Court-Ordered ADR Program, and Notice to Parties of Court Policy on Settlement and Use of ADR (collectively "Summons Documents") via regular U.S. mail to the Wang's resi- casetext.com/case/mercury-cable-energy 1of3 Mercury Cable & Energy, Inc. v. Chen, Case No. SA CV 12-1857-DOC (ANx) (C.D. Cal. Jan. 7, 2013) dence on November 12, 2012. See Proof of Service at- tached to Bacani Decl. at Ex. B. Mercury also emailed copies of the documents to Martin Wang at martin- scaler@yahoo.com, the most recent email address list- ed on his employee file. Mercury has received no no- tifications that the mailed documents, or email, were undeliverable or otherwise returned. See Bacani Decl. at 17. The Summons mailed to the Wangs directed them to respond within twenty-one (21) days after service, or by December 3, 2012. Neither of the Wangs has filed a response to Mercury's Complaint. On Decem- ber 7, 2012, Mercury filed a request to the Clerk of this Court that default be entered against the Wangs. See PI's Req. (Dkt. 7). The Clerk sent Mercury deficiency notices on December 12, 2012, indicating that default could not be entered until Mercury refiled the request with proofs of service on the Wangs. To correct this deficiency, Mercury now seeks the Court's approval of Mercury's alternative service on the Wangs by mail and email, and for an Order directing the Clerk to en- ter default against the Wangs. II. Approval of Alternative Service Service of process on an individual found within the judicial district is governed by Federal Rule of Civil Procedure 4(e), which states in part: "Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial dis- trict of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made;..." Where an individual cannot be personally served, and substitute service is not an option, California law pro- vides for alternative service of Summons as follows: "Where no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give ac- < casetext NF \ tual notice to the party to be served and that proof of such service be made as prescribed by the court." Cal. Code. Civ. P. § 413.30. If a defendant's whereabouts are ascertainable, notice must be given through a procedure that has a reason- able probability of actually reaching him or her. See Mullane v. Central Hanover Bank & Trust Co.,, 339 U.S. 306, 318 (1950) ("notice must be such as is reasonably calculated to reach interested parties"); Greene v. Lind- sey, 456 U.S. 444, 455 (1982) (all that is required is a method that is "reasonably likely" to provide notice). Mailing copies of the Summons to the defendant's ad- dress may “3 be deemed sufficient notice. See Mullane, 339 U.S. at 319 ("However it may have been in former times, the mails today are recognized as an efficient and inexpensive means of communication."); Mennon- ite Board of Missions v. Adams, 462 U.S. 791, 800 (1983) ("Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondi- tion"). Service by email may also suffice where other methods are unavailable and it is reasonably calculated to pro- vide actual notice to the defendant. See Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1018 (9th Cir. 2002); Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619,2012 WL 1038752, at *3 (N.D. Cal. March 27, 2012) (authorizing service by email under Cal. Code Civ. P. § 413.30 because "service by email is 'rea- sonably calculated to give actual notice’ to the Domes- tic Defendants"). Here, Mercury tried to personally serve the Wangs at their residence a dozen times, all without success. Be- cause the Wangs appear to be avoiding service, and there appears to be no person eighteen or older at their residence who can accept the Summons pursuant to Cal. Code Civ. P. § 415.20, and also because the Wangs have not sent a written acknowledgment of receipt of the summons mailed to them on November 12, 2012, see Cal. Code Civ. P. § 415.30(c), the Court hereby finds that service on defendants Wang-Chen casetext.com/case/mercury-cable-energy 20f3 Mercury Cable & Energy, Inc. v. Chen, Case No. SA CV 12-1857-DOC (ANx) (C.D. Cal. Jan. 7, 2013) (aka Martin Wang) and Tammie Wang (aka Tammie Xiu) by U.S. mail and email is appropriate and satisfies due process and the statutory requirements of Fed. R. Civ. P. 4(e) and Cal. Code Civ. P. § 413.30. While Plaintiff's Ex Parte request urges the Court to retroactively approve its November 12, 2012, mailings and emailings, the Court will not do so. The proper procedure for obtaining approval for an alternative form of service is, first, to seek the Court's approval, then to proceed. Here, pursuant to Fed. R. Civ. P. 4(e) and Cal. Code Civ. P. § 413.30, the Court GRANTS IN PART Plaintiff's request and directs that properly conformed documents may be served on defendants Wang-Chen (aka Martin Wang) and Tammie Wang (aka Tammie Xiu) by U.S. mail at18 Stonebrook, East Irvine, CA 92620, and also on Martin Wang at his email address at martinscaler@yahoo.com. III. Entry of Default Because Plaintiff has, at this point, only obtained ap- proval to serve defendants Martin and Tammie Wang in the manner described above, and has not yet suc- cessfully served them, the Court DENIES Plaintiff's request for an entry of default. Plaintiff may refile a request for entry of default if, after proper service has been achieved, defendants fail to plead or otherwise defend within the time allowed by Fed. R. Civ. P. 55. If Plaintiff needs to seek emergency or injunctive re- lief against defendants Martin and Tammie Wang, as is suggested by portions of its Ex Parte request, Plain- tiff may do so, but an entry of default contingent on past failed service is not the proper method for seek- ing injunctive relief. < cas etext casetext.com/case/mercury-cable-energy 30f3 Mode Media Corp. v. Doe, Case No. 3:16-cv-00244-RS (N.D. Cal. Jan. 15, 2016) Case No. 3:16-cv-00244-RS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Mode Media Corp. v. Doe Case No. 3:16-cv-00244-RS (N.D. Cal. Jan. 15, 2016) Decided January 15th, 2016 Richard Seeborg, United States District Judge ORDER GRANTING MODE MEDIA'S EX PARTE MOTION FOR: (1) ATEMPORARY RESTRAINING ORDER WITHOUT NOTICE AND ORDER TO SHOW CAUSE WHY PRELIMINARY IN JUNCTION SHOULD NOT ISSUE; (2) LEAVE TO SERVE DEFENDANT JOHN DOE 1 VIA HIS PRIVACY PROTECTION PROXY AGENT; AND (3) LEAVE TO CONDUCT EARLY DISCOVERY PRIOR TO A RULE 26(f) CONFERENCE Plaintiff Mode Media Corporation ("Mode Media") seeks an ex parte temporary restraining order ("TRO") pursuant to Federal Rule of Civil Procedure 65 and Civil Local Rules 7-10 and 65-1, and under the Lanham Act (15 U.S.C. §§ 1116 et seq.). For good cause shown, Mode Media's ex parte motion is GRANTED. A. Ex Parte Temporary Restraining Order \ < casetext & A TRO may be granted upon a showing "that imme- diate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). The purpose of such an order, as a form of preliminary injunctive re- lief, is to preserve the status quo and prevent irrepara- ble harm "just so long as is necessary to hold a hear- ing, and no longer." Granny Goose Foods, Inc. v. Broth- erhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). A request for a TRO is evalu- ated by the same factors that generally apply to a pre- liminary injunction, see Stuhlbarg Intl. Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th Cir.2001), and as a form of preliminary injunctive relief, a TRO is an "extraordinary remedy" that is "never granted as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S.7,24,129 S.Ct. 365,172 L.Ed.2d 249 (2008). "Un- der the Winter test, the moving party must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of pre- liminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest." Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014). Federal Rule of Civil Procedure 65(b) permits courts to issue a TRO without written or oral notice to the adverse party if (1) the moving party will suffer "immediate and irreparable injury, loss, or dam- age will result to the movant before the adverse party can be heard in opposition"; and (2) "the movant's at- torney certifies in writing any efforts made to give no- tice and the reasons why it should not be required.” casetext.com/case/mode-media-corp-v-doe 1of4 Mode Media Corp. v. Doe, Case No. 3:16-cv-00244-RS (N.D. Cal. Jan. 15, 2016) Mode Media has submitted its registrations for the trademarks to GLAM, BRASH, and TEND, which serves as prima facie evidence of ownership and ex- clusive right to use the mark. See 15 U.S.C. § 1115(a); Pom, 775 F.3d at 1124. Mode Media has also intro- duced screenshots of GlamScoop.org's website along- side screenshots of its own. A “3 comparison of the two websites reveals striking similarities, and there- fore a strong likelihood that the public would be con- fused. See Pom, 775 F.3d at 1125 (listing the Sleekcraft factors, including the likelihood of confusion). In ad- dition, Mode Media has submitted evidence that sug- gests defendants are intentionally concealing their identities and going out of their way to place the al- legedly infringing content on another server once the host removed the content from the website. See Pietz Decl. ¢ 10. Mode Media has also demonstrated a likelihood of confusion tends to cause trademark holders to lose control of their business reputation and good will-all forms of harm. In addition to showing likelihood to confusion, Mode Media has demonstrated that it has tried numerous times to stop defendants from posting the offending material on their website. Mode Media has sent numerous letters to website servers, request- ing the server to remove GlamScoop.org's content. When the content was removed, however, defendants found another server to host the website. Pietz Decl. % 10. That defendants seek and find new servers to host their content suggest they are willfully seeking to in- fringe upon Mode Media's trademarks. There is little evidence to suggest that the equities tip in defendants favor. Everything in the record suggests that defendants are willfully appropriating and using Mode Media's content. Nor is there evidence that de- fendants are engaged in legitimate business activities. Thus, the balance of equities tips in favor of Mode Media. Finally, the public interest favors issuing a TRO. "In trademark cases, the public interest is the public's < casetext NF \ right not to be deceived or confused. Indeed, ‘the most basic public interest at stake in all Lanham Act cases [is] the interest in prevention of confusion, particu- larly as it affects the public interest in truth and ac- curacy." Warner Bros. Entm't v. Glob. Asylum, Inc., No. CV 12-9547 PSG CWX, 2012 WL 6951315, at *23 (C.D. Cal. Dec. 10, 2012) affd sub nom. Warner Bros. Entm't v. Glob. Asylum, Inc., 544 F. App'x 683 (9th Cir. 2013) (quoting Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 730 (3d Cir. 2004)). Where, as here, the plaintiff shows that there is a likelihood of consumer confusion, an injunction to prevent that confusion is in the public's interest. Id. In addition to showing immediate and irreparable harm, Media Mode has made a sufficient showing that it has tried and failed to serve notice of this temporary restraining order. Mode Media does not know the defendants’ identities, despite its efforts to find out. Mode Media has figured out that defendants are using a privacy proxy service, but absent a court order, the privacy proxy service and servers will not assist with service. See Pietz Decl. 4% 3-6. Thus, Mode Media has satisfied Rule 65(b)'s requirements for issuing a TRO without notice. Accordingly, it is ORDERED: a. the GlamScoop.org domain name be placed on lock and hold, such that control over the domain name is frozen by the registrar for the pendency of this litiga- tion; b. all evidence related to the claims at issue in this action, including records relating to Internet hosting accounts used to host the website located at Glam- Scoop.org be preserved, which will include placing and maintaining all user and/or account information for the registrant of the GlamScoop.org domain name, including metadata, server data, network data, records of IP addresses for account logins, contact informa- tion, and billing information, on a legal hold during the pendency of this litigation. casetext.com/case/mode-media-corp-v-doe 20of4 Mode Media Corp. v. Doe, Case No. 3:16-cv-00244-RS (N.D. Cal. Jan. 15, 2016) c. Mode Media need not post a bond and need not appear at a hearing because there appears to be "no realistic likelihood of harm to [GlamScoop.org] from enjoining" the website. Jorgenson v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). d. This order shall become effective at 3:00 p.m. on Friday, January 15, 2016. B. Alternative Service To effect service of process, parties have options. Fed- eral Rule of Civil Procedure 4(e)(1) permits parties to "follow[] state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Pursuant to Rule 4(e)(2), parties may also serve process by "delivering a copy of the summons and of the complaint to the individual personally; leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and “5 discre- tion who resides there; or delivering a copy of each to an agent authorized by appointment or by law to re- ceive service of process." Id. As Mode Media has filed its claims for relief in the Northern District of Cali- fornia, it may serve process by filing a motion to di- rect service "in a manner which is reasonably calculat- ed to give actual notice to the party to be served and that proof of such service be made as prescribed by the court." Cal. Civ. Proc. Code § 413.30. Service by email is reasonably calculated to give defendants notice. See Rio Props. Inc. v. Rio Intl Interlink, 284 F.3d 1007, 1017 (9th Circ. 2002); Facebook, Inc. v. Banana Ads, LLC, No. C-11-3619 YGR, 2012 WL 1038752, at *3 (N.D. Cal. Mar. 27, 2012) (holding that service of process by email was reasonably calculated to provide actual no- tice because the foreign and domestic defendants were involved in commercial internet activities). Mode Me- dia has not been able to identify John Doe 1's email ad- dress, but it has found the next-best thing: the priva- cy protection proxy service. To use the privacy proxy service, defendants had to give the service contact in- formation. Pietz Decl. 4% 4-6. Thus, Mode Media has < casetext NF \ demonstrated that service via the proxy service is rea- sonably calculated to effect service. Leave is hereby GRANTED and Mode Media is OR- DERED to serve on John Doe 1 via the privacy protec- tion proxy service online form that is associated with GlamSnoop.org, the following documents: a. the requested TRO; b. the complaint in this action; c. a summons directed, as per the caption, to "John Doe 1, as registrant of the GlamScoop.org domain name"; d. this order, pursuant to which the John Does are also hereby ORDERED TO SHOW CAUSE as to why a preliminary injunction should not be issued. Specifi- cally, the John Does must show cause as to why, for the duration of this action: (i) the terms of the TRO should not remain in effect, and (ii) GlamScoop.org should not be disabled at the domain name server ("DNS") level and they should not be enjoined from further infringement of Mode Media's trademarks or other intellectual property rights, whether via “6 re- enabling GlamScoop.org name, or by using, register- ing, or trafficking in any other domain name, Internet website, or other method. Defendants shall appear at a hearing on Mode Media's motion for a preliminary injunction on January 29, 2016 at 10:00 a.m. in Court- room 3. C. Leave to Engage in Early Discovery Use of "John Doe" defendants is generally disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). When plaintiffs have tried to uncover the defendant's identity and failed, however, plaintiffs should have the opportunity to obtain discovery for the limited pur- pose of identifying the defendant. Id. Mode Media seeks subpoenas to third-parties who host or have hosted GlamScoop.org and the privacy proxy service John Doe 1 supposedly uses. Mode Media has docu- casetext.com/case/mode-media-corp-v-doe 3of4 Mode Media Corp. v. Doe, Case No. 3:16-cv-00244-RS (N.D. Cal. Jan. 15, 2016) mented its efforts to identify John Doe 1 and shown that there is good cause to permit limited discovery in order to ascertain the John Does' identities. Accordingly, leave is hereby GRANTED to Mode Me- dia to conduct early discovery prior to a Rule 26(f) conference, that is designed to identify and serve the John Doe defendants, as follows: a. serving a third party subpoena on each hosting company that the John Does have used in connection with hosting GlamScoop.org; b. serving a third party subpoena on the registrar for GlamScoop.org; c. serving a third party subpoena on the privacy proxy service that John Doe 1 used to hide his or her identity while registering GlamScoop.org; d. serving follow-up subpoenas based on returns made on prior subpoenas that are necessary to identifying the John Does so they can be named in their true names and served with the summons and complaint; e. provided, however, that all such early third party subpoenas authorized by this order are subject to the following limitations: i. early discovery and any responsive information re- ceived may be used only for the purpose of identifying the defendants and prosecuting this action; *7 ii. any subpoena recipient that is a cable service provider, or that wishes to do so, may give its subscribers notice of the subpoena, and at least 21-days to move to quash the subpoena or seek a protective order before any re- turn is made thereon; iii. the only information which Mode Media may re- quest without seeking additional Court approval is contact information, IP addresses logs, non-content metadata (such as the type of device used to login), and/or billing account information for the suspected John Doe defendants who are somehow associated with GlamScoop.org. IT IS SO ORDERED. DATED: January 15, 2016 BY:/s/. Richard Seeborg, United States District Judge <& cas etext casetext.com/case/mode-media-corp-v-doe 4 of 4