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Filed 3/8/21 Yue v. Yang CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DONGX IA O YUE, Plaintiff and Appellan t,

v. WENBIN YANG,

Defendan t and Respondent

. A15 9145

( Contra Costa County Super

. Ct. No. MSC 160 1118 )

California resident Dongx ia o Yue (plaintiff) filed a lawsuit against
several defendants, including Canadian resident Wenbin Yang , for unfair
competition and defamation

. The trial court granted Yang’s motion to quash

service of summons and complaint for lack of personal jurisdiction . (Code
Civ. Proc., § 418. 10

. )

We reverse

. We conclude plaintiff satisfied his burden of
demonstrating Yang was subject to specific jurisdiction in California and
that Yang failed to show the exercise of jurisdiction was unreasonable.2 FACTUAL AND PROCEDURAL BACKGROUND 1

Plaintiff lives in Northern California. He is a software developer

. Plaintiff established and moderated a “ Chinese language online community
website called Zhen Zhu Bay” (ZZB). Many of ZZB ’s bloggers and readers are
California residents. Muye Liu is a California resident. He owns and

operat es a competing website, Yeyeclub.com (Yeyeclu b )

. Yang posted on both

websites . He lives in Canada

. A.
Complaint

Plaintiff filed a verified complaint in Contra Costa County in propria

persona against several defendants, including Yang and Liu , alleging claims

for unfair competition and defamation

. The gist of the complaint was that

defendants engaged in unlawful business practices and defamed plaintiff to destroy ZZB and plaintiff ’s reputatio n

. T he complaint alleged Yang post ed on ZZB and Yeyeclub

. Plaintiff
removed Yang’s “sexually explicit, violent and insulting” post s from ZZB

. Liu , however, encouraged Yang to continue post ing on Yeyeclub. Thereafter,
Yang began making “defamatory attacks ” on plaintiff on Yeyeclub

. According
to the complaint

, Yang and Liu worked together to attack plaintiff on
Yeyeclub and “ induce d many ZZB bloggers to join ” Yeyeclub

. On Yeyeclub, Yang threatened to “bully Plaintiff in Plaintiff’s backyard
in California and openly challenged Plaintiff to sue him in California” so that
Yang “could leave a glori ou s record in . . . American legal history.” In another
post, Yang announced that he woul d t ravel t o San Francisco to carry out a
meeting “as originally planned.” The post contained email communications

1 We recite only those facts necessary to resolve the issue on appeal, disregarding references to, and evidence of, other lawsuits filed by plaintiff.3

between Yang and others which referred to plaintiff by name

. Later, Yang
posted that he “arrived in California” and urged his “collaborators” to come to
“the meeting.” Y ang also asserte d plaintiff had “violated [a] court order” and
that plaintiff’s “family was nearly driven to the streets.” In another post,
Yang accused plaintiff of stealing his information

— and committing
burglary

— using a “Trojan horse virus.” Y ang also p ublished a fax he sent
plaintiff asserting that plaintiff had attacked him with an I nternet virus

. The complaint alleged Califor n ia had personal jurisdiction over Yang

because he had sufficient minimum contacts with the forum state

. According
to the complaint, Ya ng intentionally directed his defamatory messages at
plaintiff in California, and intended to, and did, cause harm there

. B

. Motion to Quash
Yang moved to quash service of summons and complaint in propria

persona , arguing California lacked personal jurisdiction over him because he

lived in Can a da and lacked minimum contacts with California

. Yang also
argued the exercise of jurisdiction would be un reasonable because he lived in

Canada

. In a supporting declaration, Yang averred he had been a Canadian

r esident for over twenty years . He asserted h e had no contact with California

and had not directed any advertising , including on the I nternet, to California

residents. Yang also averred, on information and belief, that Yeyeclub.com

was an online discussion forum where users interact ed with each other
anonymously and that the website ’s content “was not directed exclusively at

California residents.” Finally, Yang testified the statements at issue in the
lawsuit were made by “anonymous posters

. ” Yang did not, however, deny
making the statements

.4

Plaintiff’s opposition asserted California had specific jurisdiction over Yang

. Plaintiff argued Yang purposefully availed himself of forum benefits
by intentionally aiming his defamatory comments at California , where many
of Yeyecub ’s bloggers and reader s resided

. Plaintiff also noted Yang’s posts on Yeyeclub mentioned traveling to

— and harming plaintiff in

— California

. Additionally , plaintiff argued his claims ar o se out of Yang’s contacts with

California and that exercising jurisdiction over Yang was reasonable.
Finally, plaintiff requested jurisdictional discovery before the court ruled on

the motion to quash

. In a detailed declaration, plaintiff averred Yang posted defamatory

information about him on Yeyecl ub. Although the posts did not use Yang’s
name, pla i ntiff provided a detailed explanation of how he was able to
identify Yang as the author of the posts. The declaration describ ed Yang’s

posts

— which appeared on the “front pages of the website”

— and attac hed
numerous documents, including the posts. In addition to posts identified in
his complaint, plaintiff also cited Yang’s post that asserted plaintiff’s criminal
liability under “California Penal Code S ection 461(1)

. ” Yang poste d that he

“ ‘ would g o to California State and bully Dr. Yue in his physical back yard’ ”

and invited Yue to sue him in California: “ ‘ I always stated that I would
destroy you the shyster in U.S. federal court

. . . . I want to go to California
State for a tour, with your support, what a pleasure. ’ ” Plaintiff further

averred that Yang knew plaintiff lived in California , and that California

“ residents

. . . read Yang’s defamatory statements

. ” The declaration also

described Yang’s direct correspondence with plaintiff, whic h included faxing
plaintiff and post ing the fax on Yeyeclub.
In reply, Yang argued posting comments on the I nternet d id not establish personal jurisdiction , particularly where “no single posting” was5

made under his name

. Yang also claimed plaintiff failed to establish the
posts were aimed at California or had a California audience

. He
characterized plaintiff’s assertions as speculat ive, unsupported by “corroborating evidence,” and based on hearsay, but he did not object to
plaintiff’s declaration. In a s upplemental declaration , Yang aver red the
Yeyeclub posts were not made “with the name of Yang

. ” He also denied ever

vis i ting California

. C

.

Order Granting the Motion to Quash

T he court granted the motion. First, it deter mined there was no basis
for general jurisdiction over Yang , a Canadian resident

. Next, and r elying on

Burdick v. Superior Court (2015) 233 Cal.App.4th 8 ( Burdick ), t he court

c oncluded there was no basis for specific jurisdiction over Yang because the
interaction between plaintiff and Yang “took place on the Intern e t” and
posting information on w ebsites d id not constitute “ ‘minimum contacts’ ”

with California.
According to the court, plaintiff alleged Yang harmed his reputation by
publishing injurious postings about him to California residents

, but had not presented evidence that Yang purposefully availed himself of forum benefits
by aim ing or intentionally targ et ing his conduct at California or a California

audience. The court did not specifically address the content of the postings,
Yang’s alleged visit to California, or plaintiff’ s evidence identifying Yang as
the author of the posts.
Finally, t he court opi ned that exercising jurisdiction over Yang “would
not comport with the notion of fair play and substantial justice” because
plaintiff was “the only link between [Yang] and the forum.” The court did not
address plaintiff’s request for jurisdictional discovery

.6 DISCUSSION

I.
General Principles

“ ‘ California courts may exercise jurisdiction over a nonresident on
any basis consistent with the federal or state Constitution

. [Citation.] To
comport with federal and state due process, California may only exercise
jurisdiction when a defendant has sufficient minimum contacts with the state
to satisfy “ ‘ traditional notions of fair play and substantial justice.’ ”
[Citations.] Under the minimu m contacts test, we examine the quality and

nature of a defendant ’ s action to determine whether requiring him to submit
to jurisdiction in California is reasonable and fair. ’ ” ( Zehia v. Superior

Court (2020) 45 Cal.App.5th 543, 551

– 552 ( Zehia ) .)

When a defendant moves to quash service of process on jurisdictional
grounds, the plaintiff has the burden of proving, by a preponderance of
the evidence, facts justifying the exercise of jurisdiction . ( Zehia , supra,

45 Cal.App.5th at p. 552 ; ViaView, Inc. v. R etzlaff (2016) 1 Cal.App.5th 198,

209

– 210 ( ViaView ).) “ The plaintiff must come forward with affidavits and
other competent evidence to carry this burden .” ( ViaView

, at p. 210

. ) A
verified complaint is the functional equivalent of an affidavit. ( Evangel ize
China Fellowship, Inc. v. Evangelize China Fellowship (1983) 146 Cal.App.3d
440, 444.) “ If the plaintiff meets this burden, ‘ it becomes the defendant ’ s burden to demonstrate that the exercise of jurisdiction would be

unreasonable. ’ ” ( ViaView, at p. 210 .)

Where

— as here

— evidence “ ‘ of jurisdictional facts is not in disput e , the
issue whether the defendant is subject to personal jurisdiction is a legal
question subject to de novo review .’ ” ( ViaView, supra, 1 Cal.App.5th at

p. 210.) “ ‘ “ The ultimate question whether jurisdiction is fair and reasonable7

under all of the circumstances, based on the facts which are undisputed and

those resolved by the court in favor of the prevailing party, is a legal

determin ation warranting our independent review. ” ’ ” ( Ibid .)

II.
California Has Specific Jurisdiction over Yang

“ ‘ Personal jurisdiction may be either general or specific. ’ ” ( Zehia,

supra, 45 Cal.App.5th at p. 552.) Here, we consider only whether Yang is
subject to specific jurisdiction. A court may exercise specific jurisdiction over

a nonresident defendant only if: (1) the defendant has purposefully availed

himself of forum benefits; (2) the controversy relate s to
, or arises out of

, the
defendant’s contacts with the forum; and (3) the exercise of jurisdiction

c omport s with fair play and substantial justice. ( I bid .) The s pecific
jurisdiction analysis focuses on “ ‘ “ ‘ the relationship among the defendant,
the forum, and the litigation. ’ ” ’ ” ( Ibid .)

A. Purposeful Availment
The first element of specific jurisdiction is whether the defendant
purposefully availed himself of forum benefits . ( Zehia, supra, 45 Cal.App.5t h

at p. 552 .) C ourts apply the “ ‘ effects test ’ ” to determ ine purposeful

availment in the defamation context . ( Pavlovich v. Superior Court (2002)

29 Cal.4th 262, 269 .) Under th is test, intentional conduct occurring
elsewhere may give rise to jurisdiction in California where it is calculated to

cause injury in California

. The defendant must expressly aim or target his

conduct toward California , with the knowledge that his intentional conduct

would cause harm in the forum. ( Id

. , at pp. 27 1

– 27 3

. )

As the trial court recognized, mere posting of defamatory comments

on the I nternet, even with the knowledge that the plaintiff is in the forum
state, is not enough to establish specific jurisdiction. ( Burdick , supra,8

233 Cal.App. 4th at p. 20

. ) But s pecific jurisdiction may be established under

the effects test where a defendant sen ds “California

- focused ” social media

messages “ directly ” to California residents “ with knowledge the recipients
[are] California residents ” for the alleged purpose of causing reputational
injury there

. ( Zehia, supra, 45 Cal.App.5t h at pp. 55 6

– 558

. ) 2
Here, p laintiff’s evidence

— his verified complaint and his

uncontradicted declaration

— established Yang purposefully availed himself

of forum benefits. The evidence showed Yang targeted his conduct at

California : he communicat ed directly with plaintiff and posted on Yeyeclub,

a website owned and operated by a California resident that had a California

audience

. 3 Plaintiff also offered competent evidence that Yang’s posts had

a Cali forn ia focus: Yang threatened to “bully” plaintiff in California and
communicated his plan to travel to San Francisco

. Yang also a nnounced that
he had “arrived in California” and urged his “collaborators” to join him.
Additionally, plaintiff provided evidence that Yang’s posts were
directed to, and received b y, a California audience: plaintiff and other

California residents “read Ya ng’s defamatory statements” on Yeyeclub.
Finally, plaintiff offered evidence that Yang post ed on Yeyeclub with the

intent to cause harm in California, where Yang knew plaintiff lived.
Together, this evidence demonstrated Yang’s “suit

- related conduct created

2 Zehia was decided after the trial court’s decision in this case.

3 In the trial court, Yang averred the Yeyeclub posts were made anonymously, but Yang did not deny communicating with plaintiff or posting

on the website

. Thus, for our purposes, the evidence is undisputed that Yang made the posts. On appeal, Yang critiques the evidence plaintiff offered in opposition to the motion to quash. We disregard these contentions . In the trial court, Yang did not object to plaintiff’s evidence and he cannot raise an evidentiary objection for the first time on appeal. ( Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1020.)9

a substantial connection between [Yang] and California.” ( Zehia

, supra,

45 Cal.App.5t h at p p. 55 6

– 558

. )
In granting the motion to quash, the trial court relied on Burdick

, a defamation case arising out of the posting of allegedly defamatory material

on Facebook

. There , a group of physicians and others (collectively, bloggers)
published entries on an Internet blog questioning the safety and efficacy of
a skin care product . In response, a representative of the skin care company
made a public Facebook post suggesting the bloggers had criminal histories.
( Burdick, supra , 233 Cal.App.4th at p p . 14

– 15 .) The bloggers filed a lawsuit
in California against the skin care representative, a n Illinois residen t
, alleging several torts

, including defamation

. ( Id. at p p

. 13

– 14.) T he trial

court denied the defendant ’ s motion to quash service of summons , concluding

California had specific jurisdiction under the “ ‘ “ effects ” ’ test

. ” ( Id. at p. 16 .)

The Burdick court reversed. ( Burdick, supra , 233 Cal.App.4th at

pp. 16, 30.) It held the defendant’s suit

- related conduct

— the public posting
of an allegedly defamatory statement on social media

— did not create

a “ substantial connection” with California sufficient to confer sp ecific
jurisdiction

. ( Id. at p. 25.) The court noted the defendant published the post

from Illinois and that there was no evidence the social media page “had

a California audience ” or “a California focus.” ( Ibid. ) Burdick held that
posting 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 defendant not only inte ntionally post the

statements

. . . but that the defendant expressly aim or specifically direct10

his or her intentional conduct at the forum, rather than at a plaintiff who

lives there.” ( Id. at p

. 13 .)

T his case bears some resemblance to Burdick because the defendants in
both cases posted the allegedly defamatory material online. But that is
where the similarity between this case and Burdick ends. U nlike the

defendant in Burdick , Yang communica ted directly with plaintiff.
Additionally, and i n contrast to th e Facebook post in Burdick , which did not
mention the bloggers by name

, Yang’s posts on Yeyeclub mentioned plaintiff
by name and threatened to harm him in California. The posts repeatedly

referr ed to California, suggested California criminal liability

, and threatened

a California visit by Yang

. Lastl y, i n Burdick , there was no evidence the skin

care represe n tative’s social media page “had a California audience

. ”
( Burdick , supra, 233 Cal.App.4th at p. 25

. ) Here, plaintiff offered

uncontradicted evidence that Yeyeclub had a California audience, and that
California residents read the allegedly defamatory posting s. Plaintiff has thus shown more than a mere posting on the I nternet combined with a defendant’s awareness that his conduct might cause injury

in California. Rather, he has shown that Yang targeted his postings at
plaintiff, emphasized the California connection, and threatened to come to
California, with an awarene ss that Californians would be in the audience.
Plaintiff has established the purposeful availment element

. B. Relatedness Between the Controversy and Forum Contacts

The second element for specific jurisdiction is whether the co ntroversy
relates to, or arises out of, the defendant’s contacts with the forum . ( ViaView,

supra, 1 Cal.App.5t h at p. 216 .) T here must be “ ‘ an affiliation between the
forum and the underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State and is therefore subject to the11

State ’ s regulation. ’ [Citation.] ‘ [S] pecific jurisdiction is confined to
adjudication of issues deriving from, or connected with, the very controversy

that establishes jurisdiction. ’ ” ( Bristol

- Myers Squibb Co

. v. Superior Court
(2017) 137 S.Ct. 1773, 1780 .) This element is easily satisfied here. The

verified complaint alleged Yang’s defamatory posts on Yeyeclub injured
plaintiff’s business and his rep utat ion in California

. On this record, the
undisputed evidence demonstrates there is an “adequate link” between
plaintiff’s claims and Yang’s contacts with California

. ( Id

. at p. 1781.) Yang

does not persuasively argue otherwise.

C. Fair Play and Substantial Justice

Beca u se p laintiff established facts justifying the exercise of specific
jurisdiction , Y ang had the burden to show “ the assertion of jurisdiction would

be unfair or unreasonable

. ” ( Jayone Foods, Inc. v. Aekyung Industrial Co.

Ltd. (2019) 31 Cal.App.5th 543, 56 3

. ) Yang “ has not made the requisite
showing

. ” ( Id. at p. 563.)

“ An otherwise valid exercise of personal jurisdiction ‘ is presumed

to be reasonable. ’ [Citation.] Therefore, [the] defendant ‘ must present

a compelling case that the presence of some other considerations would
render jurisdiction unreasonable. ’ ” “ A determination of reasonableness rests
upon a balancing of interests: the relative inconvenience to defendant of
having to defend an action in a foreign state, the interest of plaintiff
in suing locally, and the interrelated interest the state has in assuming
jurisdiction. [Citation.] The factors involved in the balancing process include
the following: ‘ the relative availability of evidence and the burden of defense
and prosecution in one place rather than another; the interest of a state
in providing a forum for its residents or regulating the business
involved;

. . . and the extent to which the cause of action arose out12

of defendant ’ s local activities. ’ ” ( Integral Development Corp. v.
Weissenbach (2002) 99 Cal.App.4th 576, 591 , italics added ( Integral
Development ).)
To be sure, there is some burden associated with requiring Yang,

a Canadian resident, to li ti gate this case in California . ( Integral
Development, supra, 99 Cal.App.4t h at p. 592 .) But that is only one factor
in assessing reasonableness

, and that factor does not weigh heavily in Yang’s

favor because there is no evidence in the record that Yang would be at

a “ ‘severe disadvantage’ in comparison to his opponent” due to his location

. ( Burger King Corp. v. Rudzewi cz 471 U.S. 462 , 478 ; Integral Development, at

p. 592 [ burden on foreign defendant in litigating case i n California did not

establish exercise of jurisdiction was unreasonable ] .)

Other factors weigh in favor of exercising jurisdiction

. For example,

e vidence supporting plaintiff’s claims will likely be found in California , and

Y ang has not identified any witnesses or evidence located elsewhere

. ( Integral Development, supra, 99 Cal.App.4t h at p. 592.) California also “ has
a manifest interest in providing a local forum for its residents to redress
injuries inflic ted by out

- of

- state defendants .” ( Id. at p. 591.) Finally, i n targeting California with his conduct, Yang could fairly expect to have been

held “answerable on a claim related to those activities.” ( Keeton v. Hustler
Magazine, Inc. (1984) 465 U.S. 770, 776.)
Given plaintiff’s “ showing of the requisite minimal contacts with
California, the nexus between those contacts and the claims raised in the
lawsuit, and the allegations in the complaint that [Yang] has committed torts
causing effects in California, ” we conclude Yang “has not met his burden of
presenting a ‘ compelling ’ case that jurisdiction would be unreas onable under

all of the circumstances. ” ( Integral Development

, supra, 99 Cal.App.4th at13

p. 593 ; Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd.

, supra,

31 Cal.App.5th at p. 565 [defendant failed to make “compelling case” that
exercising jurisdiction would be unreasonable or unfair]

. )

We conclude Yang is subject to specific jurisdiction in California.
Having reached this result, we need not consider w hether the court erred by
failing to consider

— and grant

— plaintiff’s request for jurisdictional discovery.

DISPOSITION

The order granting Yang’s motion to quash service of summons and
complaint is reversed. The court is ordered to enter a new order denying the

motion and reinstating the complaint as to Yang

. Plaintiff is entitled to
recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)14 _________________________ Seligman, J. *

WE CONCUR:

_________________________ Needham, Acting P. J.

_________________________ Burns, J.

A159145

* Judge of the Superior Court of Alameda County , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution

.