F iled 7/6/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

VIAVIEW, INC

. , Petitioner and Respondent,

v. THOMAS RETZLAFF, Respondent and Appellant. H041521 (Santa Clara County Super. Ct. No. 114CH005460)

T HE COURT. *

— Petitioner and respondent ViaView, Inc. (a corporation , hereafter “ViaView” ) file d a petition for a workplace violence restraining order (Code Civ. Proc., § 527.8) 1 against respondent and appellant Thomas Retzla ff

. 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. T he trial court concluded that
Retzlaff had made a ge neral 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 . Th e motion should have been granted beca use under section 418.10, subdivision (e), a party who moves to quash may

— concurrently with or after fi ling a motion to quash

— participate in the litigation and “no act” by the party constitutes an appearance unless and until the

* Before Rushing, P.J., Premo, J., and Márquez, J. 1 All further statutory references are to the Code of Civil Proced ure unless otherwise stated.2

proceedings on the motio n t o quash are final ly decided adversely to that party. (§ 418.10, subd. (e); Air Machine Com SRL v. Sup e rior 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 direc t the court to enter a new order granting the motion.

F ACTS & P ROCEDURAL H ISTORY

James McGibney , a r esident of California , is the CEO a nd founder of ViaView, which oper ates the websites BullyV ille, CheaterVille, and others. Retzlaff , who at all
relevant times resided in Texas or Arizona , is a critic of the BullyVille and CheaterVille
websites

. O n March 17 , 2014 , ViaView filed a petition for a workplace violence restraining order agains t Retzlaff . The petition alleged that Retzlaff had made credibl e threat s 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

.

2 McGibney and ViaView made the same allegations against Retzlaff and others in two other lawsuits filed in state court in Texas and in the federal district court for the Northern District of California, which alleged causes of action for defamation, tortious interference with business relations, invasion of privacy, and other related torts.

3 All further date references are to events that occurred in 2014.3

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 he aring 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 perma nent 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 juris diction over Retzlaff,
who lived in Texas. ViaView argued that the court had personal jurisdiction because
Retzlaff ’s conduct was direc ted at California since he published McGibney’s California
address and was “telling people to go kill [McGibney] and rape his wife here i n San
Jose.” ViaView submitted a b rief and “a massiv e sta ck of proof” to support it s allegations, which the court ag reed to read over a break

. (Nei ther the brief nor the

“ massive stack of proof

” is in the record.) After reviewing ViaView’s submission s , the court agreed to extend the TRO fo r 30 days to allow ViaView to serve Retzlaff. The court also continued the hearing on the permanent i njunction to May 12

. At the May 12 hearing, ViaView advised the court that Retzlaff had moved to Phoenix, A rizona , and had not been served . ViaView t hen asked th e 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 voluntee r since she was providing4

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 quest ioned whether the statute applies to Daughter, who lives in a foreign country. ViaView responded that it is an Internet

based company with at le ast 20 worksites since most of its employees work remotely out
of their homes

. The court reissued the TRO an d 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 othe r 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 Q uash , and Other Court Filings
Retzlaff was purporte dly 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 si nce he lived in either Texas or
Arizona at all relevant times and he did not have minimum contacts with California.
Via View 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 mak e thr eats of vio lence 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 2015.5.5

On July 21

— t he same day he filed his motion to quash

— Retzlaff filed a n ex parte motion to continue the Ju ly 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 m otion until July 29, as discussed below

. On July 25 , Retzlaff filed a “Notice .

. . of Perjury

. . . by .

. . McGibney” which

a ssert ed that McGibney had lied to the court about hi s military experience and computer expertise and falsely claimed specialize d 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 2 9 hearing on behalf of Retzlaff

. Before th e h earing, 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 c lerks refused to fi le 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 t hat it was prepared to hear it

. Although
ViaView had not been s erved 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 fi led an answer , and ( 3 ) repeated its
contention that the court had jurisdiction over Retzlaff because he had directed his
conduct at a California reside nt. 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.6

Anti

- SLAPP Motion

–– The court then heard the anti

- SLAPP motion. It denied th at

mo tion orally in open court . The court reasoned that sinc e Retzlaff denied making any
threats , there is no speech to protect , and Retzlaff had th erefore failed to carry his initial
burden of demonstra ting that what he said was constitu tionally protected

. Permanent Injunction

–– At the heari ng on the permanent injunction, ViaView presented documentary evidence, but no live testimony. Leiderman ask ed to be add ed as a protected person , arguing that Retzlaff ha d be en conflating him with McGibney and encouraging others to file fraud ulent lawsuits against him

. After the hearing, t he court granted a permanent injunction against workplace violence. In a ddition to McGibney and his family, the order lists Daughter and Leiderman as protected persons. The court also ordered Retzlaff to pay ViaView $10,000 in “costs” for the three TRO hearings and the hearing on the permanent injunction.

D. New Trial Motion

Retzlaff fil ed a timely motion for a new trial in which he challenged the court ’ s ord ers (1) denying the motion to quash, (2) denying the motion to strike, and (3) granting
the p ermanent i njunction

. T he new trial motion was denied by operation of law on S eptember 28

. (§ 660.) On October 10 , Retzlaff filed a timely noti ce of appeal

.

D ISCUSSION

I. Preliminary Matters

A. No Specia l Consideration is Given to a Self

- Represented Party
In his opening brief and in other submissions, Retzlaff argues that he is a sel f

represented party and therefore entitled to special consideration , including “ the full measure of pro se Constitutional protections and the benefit of the doubt.” Retzlaff has7

not received special consideration from this court because he is self

- represe nted. While a party may choose to act as his or her own attorney, “ ‘ s uch a party is t o be treated like
any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is t h e case with attorneys, [self

represented] litigants must follow correct rules of procedure. [Citations.]” ( Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246

- 1247; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524 [“Although plaintiffs a ppear in this court without counsel, that does not en title them to special treatment” ].)
B. ViaView’s Failure to Provide Record Citations and Reliance on Matters Outside the Record
ViaView’s original respondent’s brief did not contain any citations to the re cord. On April 12, 2016, this court issued an order setting forth legal authority regarding the requirement to cite to the record , and we ordered ViaView to file an amended brief

“ which shall c ontain appropriate citations to th e record in compliance with” that authority

. W e also ordered that the amended brief “ shall not refer to matters outside the
record , ” citing to Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 and
Kendall v. Barker (1988) 197 Cal.App.3d 619, 625. Despite our order, V iaView’s
amended brief

–– including its argument on the motion to quash

–– recites facts that are not supported by citations to the record , and it continues to refer to matter s outside the
record. In light of our prior order and the legal authority set forth therein, w e will disregard all factual assertions in ViaView’s amended respondent’s brief that are not supported by citations to the record or that refer to matters outside the record.8

II. Motion to Quash for L ack of Personal Jurisdiction

A. General Principles

Un der Californ ia’s long

- arm statute, California courts may exercise personal jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of this state or of the United States.” (§ 410.10 .) “A state court’ s assertion of personal juri sdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal
Constitution 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.” ’ ” ( Vons Companies, Inc. v. Seabest Foods, Inc . (1996) 14 Cal.4th 434, 444 ( Vons ) , quoting Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316 .) “The due process clause is concerned with protecting nonresident defendants from being brought unfairly into [ a forum state], on the basis of random contacts.” ( Vons , at p. 452.) “Personal jurisdiction may be either general or specific. A nonresident defendant

ma y be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial .

. . continuous and systematic.’ [Citations.]” ( Vons , supra , 14 Cal.4th at p. 445, italics omitted.) Specific jurisdiction exists when, alt hough the defendant lacks such pervasive forum contacts that the defendant may be treated as present for all purposes, it is nonetheless proper to subject the defendant to the forum state’s jurisdiction in connection with a particular controversy. ( Epic C ommunications,
Inc. v. Ric h waveTechnology, Inc . (2009) 179 Cal.App.4th 314, 327.)
ViaView argued below that the court has specific jurisdiction over Retzlaff. “The inquiry whether a forum State may assert specific jurisdiction over a nonresident
defendant ‘focuses on “the relationship among the defendant, the forum, and the9

litigation.” ’ ” ( Walden v Fiore (2014) 571 U.S. ___; [ 134 S.Ct. 1115 , 1121 ] ( Walden ) ; accord, Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 ( Pavlovich ) .)

B. Burden of Proof and Standard of Review
On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction. ( Vons , supra , 14 Cal.4th at p. 449.) 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. ( In re Automobile Antitrust Cases
I & II (2005) 135 Cal.App.4th 100, 110.) If the plaintif f meets this burden, “it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” ( Vons , at p. 449.)

“ When the evidence of jurisdictional facts is not in dispute, the issue whether the defendant is subject to personal jurisdiction is a legal question subject to de novo review. ( Vons , supra , 14 Cal.4th at p. 449.) When evidence of jurisdiction is in dis pute, we accept the trial court’ s resolution of factual issues, draw all reasonable inferences in

s upport of the trial court’ s or der, and review the trial court’ s determination of factual
issues for substantial evidence. [Citations.] ‘ The ultimate question whether jurisdiction is fair and reasonable under all of the circumstances, based on the facts which are

u ndisputed and those resolved by the court in favor of the prevailing party, is a legal
determination war ranting our independent review.’ [Citation.]” ( Burdick v. Superior
Court (2015) 233 Cal.App.4th 8, 17 ( Burdick ).)

C. Nature of a General Appearance

A def endant submits to the court’s jurisdiction by making a general appearance in
an action and thereby waives the defense of lack of personal jurisdiction

. ( Roy v.10

Superior Court (2005) 127 Cal.App.4th 337, 341 ( Roy ) .) “ ‘ A general appearance occurs
when the defendant takes part in the action or in some manner recognizes the aut hority of the court to proceed.’ [Citation.] Such participation operates as conse nt to the court’ s exercise of jurisdiction in the proceeding. ‘ Unlike juri sdiction of the subject ma tter .

. . jurisdiction of the person may be conferred by consent of the per son, manifested in various ways’ including a ‘general appearance.’ [Citations.] By generally appearing, a defendant relinquishes all objections based on lack of personal jurisdic tion or defective process or service of process. [Citation.]” ( In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 7

- 8. )
D. Waiver of Jurisdiction and Statutory Procedures for Challenging Jurisdiction

The traditional rule in California was “ that a defendan t who chooses to litigate the merits of a lawsuit after its motion to quash has been denied has no right to raise the jurisdictional question on appeal. [Citations

. ] It was said t hat by contesting the merits,

‘ “ the defendant made a general appearance an d submitted itself to the jurisdiction of the

court ” ’ and ‘ “ thereby waived any right it may have had to insist that jurisdiction of its person had not been obtained. ” ’ ” ( St ate Farm General Ins. Co. v. JT’ s Frames, Inc

. (2010) 181 Cal.App. 4th 429, 437 ( State Farm ) , citing Jardine v. Superior Court (1931) 213 Cal. 301, 304

. ) In 1955, the Legislature made changes to the Code of Civil Procedure that (1) “ extended the time within which a defendant who moved to quash was required to respond to the complaint , giving the defendant until after service of an order denying the
motion ”; (2) provided for appellate review by way of a petition for writ of mandate and (3) “ gave a defendant who sought a writ additional time to plead, precluding entry of
default while t he writ petition was pending.” ( State Farm , supra , 181 Cal.App.4th at
p. 438, citing former sections 416.1 and 416.3.) The current statutory scheme continues11

“ t o provide that a party whose motion to quash has been denied may seek relief through a petitio n for writ of mandate and continue [s] to specify that the time to respond to the complaint does not expire while the motion to quash and the writ are pendin g. ” ( Id

. at
p. 439 , citing § 418.10, subds. (b), (c) .) In 2002, the Legislature added subdivision (e) to section 418.10 , the statute that currently governs motions to quash

. ( Stats. 2002, ch. 69, § 1

. ) Under subdivision (e) , a d efendant or cross

- defendant may move to quash and “ simultaneously answer, demur, or move to strike the complaint o r cross

- co mplaint .” (§ 418.10, subd. (e) .) Moreover, “no
act” by a party who first makes a motion to quash, “ including filing an answer, demurrer, or motion to strike,” constitutes an appearance “ unle ss the court denies the motion.” (§ 418.10, subd. (e)(1).) If the trial court denies the motion, the defendant is “ not deemed to have generally appeared until entry o f the order denying the motion.” ( Ibid .) And i f th e party whose motion to quash has been denied files a timely petition for writ of mandate, that part y “ is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded.” (§ 418.10, subd. (e)(2).) “[S] ubdivision (e) does not change the essential rule that ‘ [a] defendant submits to the court’ s jurisdiction by mak ing

a general appearance in an action’ by ‘ participat[ing] in the action in a manner which
recog nizes the court’ s jurisdiction.’ ( Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250 .

. . [( Factor Health )] ; accord, Roy

. . . supra , 127 Cal.App.4th at p. 341.) It merely delays the effect of such actions until the motion to quash is denied or, if the defendant seeks writ review, until proceedings on the writ have
concluded. ” ( State Farm , supra , 1 81 Cal.App.4th at pp. 440

- 441.)
Befor e we address the merits of Retzlaff’s jurisdictional argument, we must first determine whether Retzlaff has made a general appearance, thereby waiving the jurisdictional defect . In our review of that question, we are presented with an issue regarding the appealability of the order on the motion to quash. Since “the question of12

appealability goes to our jurisdiction, we are duty bound to consider it on our own motion.” ( Olson v. Cory (1983) 35 Cal.3d 390, 398 ( Olson ).)

E. Appealability

S ection 418.10 fixes the point in time at which a defendant who participates in litigation after filing a motion to quash will be deemed to have made a general appearance. ( State Farm , supra , 181 Cal.App.4th at p. 442.) Subdivision (e)(1) of section 418.10 provides: “ If the court denies th e motion [to quash] , the defendant or

cross

- defendant is not deemed to have generally appeared until entry of the order denying the motion

. ” (Italics added.) Subdivision (e)(2) extends that time in cases where a party petitions for a writ of mandat e : “ If th e motion .

. . is denied and the defendant

. . . petitions for a writ of man date .

. . , the defendant .

. . is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded

. ” T he petition
for writ of mandate must be filed “ within 10 day s after service .

. . of a written notice of entry of an order of the court denying [the] motion , or within any further time not exceeding 20 days that the trial court may for good cause allow

. ” (§ 418.10, subd . (c).)
T here is no written order denying the motion to quash in this case, and hence no
notice of ent ry of order. T he record does not reflect when the court’s oral order was

enter ed in the minutes. Moreover, since Retzlaff sought appellate review of th e court’s decision denying his motion to quash, section 418.10 subdivision (e)(2) extended the time
he would not be “deemed to have generally appeared until the proceedings on the writ petition have finally concluded

. ” (§ 418.10, subd. (e)(2).) Retzlaff had “ 10 days after
service upon him [] of a written notice of entry of an order of the court denying his []
motion ” to file a writ pet ition

. (§ 418.10, subd. (c).) Since there was no written order on the motion to quash and neither the court nor ViaView served Retzlaff with “written notice of entry of an order deny ing” his motion to quash, the time for Retzlaff to file a13

petition for writ of mandate challenging the court’s order on the motion to quash has

never run. In McCorkle v. City of Los Angeles (19 69) 70 Cal.2d 252 ( McCorkle ), the California Supreme Court held that the Legislature’s decision to provide for appellate review of a trial court order denying a motion to quash by writ of mandate precluded review of such orders “upon appeal from a judgment entered after trial on the merits.” ( Id . at p. 257 ; see also People v. Mena (2012) 54 Cal.4th 146, 155

- 156 [in section 418.10, “the Legislature has made writ relief the exclusive avenue to address trial court error”] .)
But r ather th an file a petition fo r writ of mandate , as required by section 418.10,
subdivision (c), Retzlaff filed this appeal

. Although Retzlaff failed to petition for a writ
of mandate , i n “unusual circumstances,” we may treat an appeal as a petition for an extraordinary writ

. ( Olson , supra , 35 Cal.3 at p. 401.) As we shall explain, after examining the factors from Olson , we conclude s uch circumstances are present here

. T he procedural history of this case is unusual. The court heard Retzlaff ’s motion to quash, ruled on his anti

- SLAP P motion , and conducted the trial on the p ermanent i njunctio n all in the same day , only 15 days after Retzlaff was served

. Invariably , a motion to quash is heard as a preliminary matter, before other motions attacking the pleadings and before proceedings on the merits

. Moreover , the hearing on the p ermanent i njunction resolved the is sues present ed by the workplace violence petition , and t he record and the briefs are adequate for writ review. ( Olson , supra , 35 Cal.3d at p. 401.)
B oth parties assert that the order denying the motion to quash is appealable , and the fact
that the trial court is not a party is not an obstacle “ since there is no indicat ion that the

court would

. . . become more than a nominal party. ” ( Ibid

. ) To dismiss the appeal rather th an exercise our power to reach the merits thro ugh a mandate proceeding would be “ ‘ “ unnecess arily dilatory and circuitous,” ’ ” particularly
since the time for Retzlaff to peti tion for writ of mandate has never run. ( Olson , supra ,14

35 Cal.3d at p. 401. ) G iven the threshold nature of the jurisdictional question, it would make no sense to dismiss the appeal as to that issue, decide t he other issues presented , and then address the jurisdictional question in a later writ proceeding. Instead , t reating the app eal as a petition for writ of mandate avoids piecemeal litigation and further delay , and allows for an orderly examination of the issues presented

. Moreover, if we
conclude

— as we do

— that the trial court erred in its jurisdictional ruling, that will end th e litigation. W e shall therefore treat the appeal of the court’s order denying the motion to quash as a petition for writ of mandate.

F. Analysis of Waiver Claim
Citing State Farm , ViaView argues that Retzlaff waived his jurisdictional challenge by litigati ng the merits of the petition for a workplace violence restraining order after his motion to quash was denied. We disagree.
Under section 418. 1 0, subdivision (e) , “ no act by a party who makes a [motion to quash ], including filing an answer, demurrer, or motion to strike,” before or concurrently with taking that action will be deemed a general appearance until litigation of the motion to quash is finally resolved adversely to the defendant. ( § 418.10, subd. (e), italics added;
Air Machine , supra , 186 Cal. App.4th at pp. 425

- 427.) Courts have i nterpreted th e italicized language broadly. The State Farm court stated , for example, that “a party may answer, demur, move to strike and perform other actions related to the merits without fear of accidentally waivi ng a potentially meritorious attack on personal jurisdiction .” ( State Farm , supra , 181 Cal.App.4th at p. 441, italics added ; see also Air Machine , at p. 427 [ the word “act” in section 418.10, subdivisi on (e)(1) applies “broadly”; it “means

‘ any act’ [by t he defendant,] and is not limited to an ‘a ct’ that is defensive in nature ” ]; Roy , supra , 127 Cal.App.4th at p. 345 [“ Nothing could be clearer: a defendant may move15

to quash coupled with any other action without being deemed to have submitted to the

c ourt’ s jurisdiction”] .) This case is distinguishable from other cases in which the defendant was found to
have made a gener al appearance. I n Factor Health , the court held that defendants who filed ex parte applications for discovery related to the merits of t he case before filing their motion to quash had made a general appearance and submitted to the court’s jurisdiction. ( Factor Health , supra , 132 Cal.App.4th at pp. 250

- 25 2 .) And in Roy , the court held that defendants who filed case management statements, attended conferences, propounded discovery, filed numerous motions to compel, requested continuances, and filed a motion for summary judgment before they filed their motion to dismiss for lack of personal jurisdiction had waived the jurisdictional defect. ( Roy , supra , 12 7 Cal.App.4th at p p

. 340, 346.) Unlike the defendants in Factor Health and Roy , Retzlaff filed his motion for
a continuance concurrently with his motion to quash. H e filed his notice of perjury by McGibney (which ViaView argued wa s t he eq uivalent of an answer) and his anti

- SLAPP
motion after he filed the motion to quash

. He also participated in the July 29 hearing after he filed the motion ot quash. Thus, Retzlaff preserved his jurisdictional claim by filing his motion to quash first . N one of the action s he took concurrently with or after filing that motion will be deemed a general appearance unless and until this writ proceeding is decided adversely to him. (§ 418.10, subd. (e) ; Air Machine , supra , 186 Cal.App.4th at pp. 417, fn. 3, 42 1

- 422 , 426 .)
This case is a lso distinguishable from State Farm , in which the appellate court found the plaintiff had waived its right to contest personal jurisdiction

. In that case, State
Farm General Insurance, a California company, sued JT’s Frames, In c. (JTF), an Illinois corporation, in California for a declaration that State Farm’s insurance policy did not cover JTF’s claim against State Farm’s insured. ( State Farm , supra , 181 Cal.App.4th at pp. 433

- 434.) JTF moved to quash service for lack of pers onal jurisdiction. The trial16

court denied the motion and JTF petition ed for a writ of mandate . ( Id. at pp. 435

- 436.) While the writ petition was pending in the court of appeal, JTF propounded discovery, filed opposition to State Farm’s choice of law mot ion, and opposed State Farm’s motion for summary judgment. After the trial court granted summary judgment for State Farm , the appellate court summarily denied JTF’s writ petition on the motion to quash. ( Id. at
p. 436.) Pursuant to section 418.10, subdi vision (e)(2) , once the writ proceeding was final, the actions JTF took while the “writ was pending that recognized the court’s jurisdiction [were] ‘deemed’ to constitute a general appearance, and no furthe r objection to jurisdiction [would] be permitted.” ( Id. at p. 441.) After JTF’s writ petition was denied, JTF appealed the summary judgment, as well as the order on the motion to quash, in effect seeking a second bite at the apple from the appellate court on the question of personal jurisdiction. ( Stat e Farm , supra , 181 Cal.App.4th at pp. 433, 437.) The appellate court concluded that the jurisdictional issue was not cognizable in the appeal . The court held that by participating “fully in resolving the merits of the litigation while the writ was pendin g, [ JTF ] submitted itself to the jurisdiction of the court and waived any further right to contest personal jurisdiction

. ” ( Id. at p p

. 437 , 441 .) ViaView relies on this language from State Farm and argues that by participating in the hearing on the p erma nent i njunction, Retzlaff waived his jurisdictional claim

. ViaView ’s reliance on State Farm is misplaced. Although the language quoted above, read out of context, supports ViaView’s argument, it must be interpret ed in light
of the parag raph in which it a ppears. In that paragraph , the court stated: “ However, subdivision (e) does not change the essential rule that ‘ [a] defendant submits to the
court’ s jurisdiction by making a general appearance in an action’ by ‘ participat[ing] in
the action in a ma nner w hich recognizes the court’s jurisdiction.’ [Citations.] It merely delays the effect of such actions until the motion to quash is denied or, if the defendant17

seeks writ review, until proceedings on the writ have concluded. Once the motion is
denied or wr it proceedings have concluded, the actions undertaken by the defendant while the motion or writ was pending that recognized the trial court’ s jurisdiction will be ‘deemed’ to constitute a general appearance, and no further objection to jurisdiction will
be permitted. [JTF], having participated fully in resolving the merits of the litigation while the writ was pending, submitted itself to the jurisdiction of the court and waived any further right to contest personal jurisdiction. ” ( State Farm , supra , 181 C al.App.4th at p. 441.) We emphasize that JTF’s participation in the litigatio n was deem e d a general
appearance only because

–– unlike this case

–– its writ petition had been denied. This case is distinguishable from State Farm

. First, this appeal is Retzlaf f’s first attempt to obtain appellate review of the order denying his motion to quash. Second,
unlike the appeal in State Farm , since we treat this appeal as a petition of writ of mandate, writ review of the order denying the motion to quash in this case is not yet final.
And third , u nlike JTF, Retzlaff h as not attempted to appeal the court’s ruling on the jurisdictional questi o n after a writ petition was finally decided adversely to him. Thus, any act Retzlaff engaged in to defend against the workplace violence petition has not yet been deemed a general appearance. Since Retzlaff filed his motion to quash concurrently
with or before taking any other action in response to the petition , and since his jurisdictional claim has n ot yet been deemed waived, we will proceed to consider it on
the merits.

G. Merits of Jurisdictional Claim

A nonresident defendant may be subject to the court’s specific jurisdiction if three requirements are met: (1) the defendant has purposefully availed itself of forum benefits
with r espect to the matter in controversy; (2) the controversy is related to or arises out of
the defe ndant’ s contacts with the forum; and (3) the exercise of jurisdiction would be18

reasonable and comport s with fair play a nd substantial justice. ( Pavlovich , at p . 269;
Vons , supra , 14 Cal.4th at pp. 446, 447.) “The inquiry whether a forum State may assert specific jurisdiction over a
nonresident defendant ‘ focuses on “the relationship among the defendant, the forum, and the litigation.” ’ [Citations.] For a Sta te to exercise jurisdiction consistent with due process, the defendant’s suit

- related conduct must create a substantial connection with the
forum State. ” ( Walden , supra , 134 S.Ct. at pp. 1121

- 1122.) “First, the relationship must
arise out of contac ts tha t the ‘defendant himself ’ creates with the forum State. [Citation.] Due process limits on the State’s adjudicative authority principally protect the liberty of
the nonr esident defendant

— not the convenience of plaintiffs or third parties. [Citation.] [T he United States Supreme Court has] consistently rejected attempts to satisfy the
defendant

- focused ‘minimum contacts’ inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State. ” ( Id. at p. 1122 , italics original .) “ S econd, [the] ‘minimum contacts’ ana lysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there. ” ( Ibid. ) “[M]e re injury to a forum resident is not a sufficient connection to the forum.” ( Id. at p. 1125.)
S ince Retzlaff challenged personal jurisdiction by a motion to quash, ViaView had the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction. ( Vons , supra , 14 Cal.4th at p. 449.) To that end, ViaView was required to “ ‘present facts demonstrating that the conduct of [Retzlaff] related to the pleaded causes is such as to constitute constitutionally cognizable “minimum contacts.” [Citation.]’ ” ( DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090

- 1091.) To carry this burden, ViaView was required to come forward with affidavits , declarations, and other competent evidence . ( In re Automobile Antitrust Cases I & II , supra , 135 Cal.App.4th at p. 110 .) If ViaView ha d met th is burden, Retzlaff would then19

have ha d the burden to demonstrate that the exercise of juri sdiction would be
unreasonable. ( Vons , supra , 14 Cal.4th at p. 449.) In his declaration in support of the motion to quash, Retzlaff stated that he resided in “Arizo na and/or Texas,” he has never lived in California, and he has never considered California his domicile. He declared that he has never owned real property, voted, or held a driver’s license in California , and that he has never done business in California or worked for a Califo rnia employer. He also said he has never sued or been sued in California, ne ver consented to the jurisdiction of a California court, and never purposefully availed himself of the benefits or protections of California’s laws. Retzlaf f also declared that he has “never had any communications with” McGibney , and has “never sent him any death threats, as alleged in his complaint.” McGibney did not present any evidence that disputed th e se facts. As we have noted, McGibney’s declarati on i n opposition to the motion to quash was no t signed under penalty of perjury under the laws of the S tate of California as required by section 2015.5

. It therefore had no evidentiary value and we shall not consider it in our review of the jurisdictional iss ue . ( Kulshrestha v. First Union Commercial Corp . (2004)
33 Cal.4th 601, 601

- 611 [declaration that does not comply with section 2015.5 is not sufficiently reliable to be admitted into evidence].) ViaView’s workplace violence petition was verified by McGibn ey as CEO of
ViaView

. Generally , a properly verified complaint

— or in this case a properly verified petition

— may be t reated as a declaration or affida vit

. ( Evangelize China Fellowship , Inc. v. Evangelize China Fellowship (1983) 146 Cal.App. 3d 4 40, 444. ) However, “when the verification is made on behalf of a corporation .

. . by any officer thereof , ” as McGibney did on behalf of ViaView, “the pleadings shall not otherwise be considered as an affidavit or declaration establishing the facts th e rein alleged. ” (§ 446, subd. (a).) Thus, ViaView cannot rely on its verified petition to establish that Retzlaff had the20

requisite minimum contacts with California . Since neither McGibney’s declaration nor ViaView’s petition have any evidentiary value on the jurisdic tional question , we conclude that ViaView did not meet its evidentiary burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of personal jurisdiction over Retzlaff. ( Vons , supra , 14 Cal .4th at p. 449.)
ViaView n onetheless argues there are sufficient minimum contacts for California
to exercise personal jurisdiction because Retzlaff knew McGibney lived in San José and
he published McGibney’s California address on a blog

. But t o oppose the motion to quash, ViaView had to do more than rely on allegations . I t had to produce admissible evidence that supported its jurisdictional facts. ViaView produced no evidence to support this assertion.
ViaView also argues that when a defendant commits a crime in the forum state, he purposefully avails himself of the forum. It argues that it is illegal to harass, threaten,
and stalk an individual , and it asserts that juri sdiction is proper based on the criminal
nature of Retzlaff’s alleged threats against McGibney and his family. But this is a civil

case, not a case about a prosecutor’s ability to prosecute alleged criminal acts that originate outside the prosecutor’s home state

. ViaView also asserts that Retzlaff’s conduct implicated this state because “ the San José Police Depa rtment and the District Attorney became heavily involved and began investigating Retzlaff’s conduct.” But ViaView did not present any competent evidence in opposition to the motion to quash that Retzlaff made the threats alleged in the petition
or the add itional threats McGibney complained of at the hearings on the TRO. While an offer of proof may have been sufficient at the ex parte hearing to obtain the TRO, more was required to oppose Retzlaff’s motion to quash. In addition , there was no evidence
the police or the district attorney are investigating this case other than an unauthenticated incident report card from the San José Police Department that was attached to the21

petition. Even if we were to consider that incident report card , a ll it purports to show is
that someone fi led a police report. Both parties cite Burdick , which involved the posting of allegedly defamatory
material on Facebook. T he court in Burdick held that posting defamatory statements about a person on social media or the Internet , “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 de fendant not only intentionally post the statements .

. . , 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.” ( Burdick , supra , 233 Cal.App.4th at
p p

. 13, 25 .)
The Burdick court observed that courts in a number of jurisdictions had held that online postings that are accessible by anyone who is interested in them, and are not specifically directed at the forum state, do not support exercising jurisdiction over the case. ( Id. at p p

. 20

- 21.) The court held that the plaintiffs in that case did not meet their evidentiary burden because they “ did not pr oduce evidence to show [that the defendant’s] personal Facebook page or the allegedly defamatory posting was expr essly aimed or intentionally targeted at Califo rnia, that either the Facebook page or the posting had a
Ca lifornia audience, that any significant number of Facebook ‘ friends, ’ who might see the posting, lived in Ca lifornia, or that the Facebook page had ad vertisements targeting
Californians. ” ( Id. at p. 25.) The court observed that while the allegedly defamatory Internet posting could be read as being expressly aimed at the plaintiffs, whom the defendant knew to be California residents, the plaintiffs did not present evidence that the postings were directed at the State of California or at a California audience . The court
concluded : “The readers of the allegedly defamatory Facebook posting ‘most likely22

would be spread all around the country

— maybe even ar ound the world

— and not necessarily in the [California] forum.’ ” ( Id. at p. 27.) Although both parties cite Burdick , they do not discuss whether or how its holdings apply to this case. ViaView contend s the alleged threats were part of a campaign to hara ss and defame McGibney and destroy ViaView ’s businesses. It contends the threats were made on Twitter accounts and the comments page of an article on BullyVille. Thus, it argues, the threats were published to anyone who chose to access
those accounts , an d were not directed solely to McGibney and ViaView

. But t o the extent the threats were defamatory, ViaView failed to meet its burden to demonstrate that
the threats were aimed at a California audience , that a significant number of California
residents saw them, or that the social media platforms allegedly used by Retzlaff were targeted to California

. For all these reasons, we conclude that ViaView ha s failed to demonstrate with competent evidence that Retzlaff ha d suf ficient minimum contacts with Californ ia such that the exercise of specific personal jurisdiction over him would comport with

“ ‘ traditional notions of fair play and substantial justice. ’ ” ( Vons , supra , 14 Cal.4th at p. 445.) We will therefore reverse the order on the motion to quash. In l ight of our conclusion, we need not reach the parties’ contentions regarding the anti

- SLAPP motion or the order granting the p ermanent i njunction.

III. Motions on Appeal
While this appeal was pending , the parties filed 40 motio ns in this court . The

co urt has a lready ruled on 1 9 of those motions. The court deferred ruling on 21 motions
for consideration with the merits of the appeal. We have ruled on the pending motions by separate order, filed concurrently herewith.23 D ISPOSITION
Let a peremptory writ of manda te issue directing the superior court to vacate its order denying Retzlaff’s motion to quash for lack of personal jurisdiction and enter a new ord e r granting the motion to quash. Retzlaff is awarded his costs in this appellate proceeding.

___ ____________________ ______________________

______________________ Rushing, P. J. Premo, J. Márquez, J.Trial Court: Santa Clara County Superior Court No: 114CH005460 Trial Judge: The Honorable Socrates Peter Manoukian

Respondent and Appellant pro per Thomas Retzlaff

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