September 22, 2009 Civil Procedure 1 of 3 Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 58 P.3d 2, 127 Cal.Rptr.

2d 329

Facts:

Pavlovich provides DVD anti-encryption codes to Internet users via web

site in order for those people to bypass encryption codes and thus copy motion picture DVDs onto their computers(pirating the DVDs). Pavlovich assumes that this was probably illegal. Pavlovich resides in Texas, and developed and posted web site while at Purdue in Indiana. Pavlovich has no ties, personal, business or otherwise, to California.

Procedural:

DVD CCA(DVD encryption license holder) files complaint in California

seeking injunctive relief and no monetary damages against Pavlovich. Pavlovich files a motion to quash service of process contending that California has no personal jurisdiction over him. Trial court denies Pavlovichs motion.

Issue:

Whether personal jurisdiction exists over a non-resident based solely on a

posting on an Internet web site when it is foreseeable that the content of that posting will adversely affect industries whose primary or significant presence is in the forum state.

Holding:

NO

Rationale:

When determining specific jurisdiction, courts consider the relationship

among the defendant, the forum, and the litigation. Further, the U.S. Supreme Court has described an effects test coming out of the Calder case where they held that a forum could exercise jurisdiction over a non-resident based on the effects of the nonresidents conduct in the forum state. Almost every jurisdiction has held that the Calder

September 22, 2009 Civil Procedure 2 of 3 effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendants knowledge that his intentional conduct would cause harm in the forum. Creating a web site may be felt nationwide but, without more, it is not an act purposefully directed toward the forum state. Pavlovichs passive web site on the Internet is not by itself sufficient to subject him to personal jurisdiction in California. If it were, then personal jurisdiction in Internet-related cases would almost always be found in any forum in the country, which would fly in the face of long held and unwavering principles of personal jurisdiction. Because Pavlovichs web site posted the antiencryption information two months before California-based DVD CCA began administering licenses for the encryption technology, then Pavlovich could not have known or expressly aimed his conduct at this entity, or have known that its primary place of business was in California. Also, knowledge and foreseeability that users of the web site might illegally pirate copyrighted motion pictures on DVDs and that such behavior would hurt the motion picture, consumer electronic, and computer industries in California does not satisfy the express aiming requirement discussed in Calder. Because finding jurisdiction based on the facts in this case would subject all intentional tortfeasors whose conduct may harm industries in a forum state to jurisdiction in that forum state, the court declines to permit that here.

DISSENT: Defendant knew or should have known that his intentional act would adversely affect at least two industries and that those industries were either centered in California or maintained a particularly substantial presence in California. Thus, his conduct was expressly aimed at California. His action was calculated to harm the

September 22, 2009 Civil Procedure 3 of 3 movie industry. Specific jurisdiction is based on the confluence of the defendant, the forum and the litigation, and not between the plaintiff and the defendant. Here, the defendants activities expressly and substantially affect industries in the forum state, and the cause of action arises out of the defendants conduct aimed at that state.