F. Bari Nejadpour (SBN 216925)
F. Bari Nejadpour & Associates, PLC
3540 Wilshire Blvd. Suite 715
Los Angeles, CA 90010
Attorney for Plaintiff: William Silverstein
CALIFORNIA SUPERIOR COURT
COUNTY OF LOS ANGELES
TJ WEB PRODUCTIONS, et al.
Case No.: BC35733
TJ Web moves to quash this complaint on the grounds that this Court lacks jurisdiction, and that they did not do the acts complained of. In fact, TJ Web regularly conducts business in this jurisdiction and are liable for the acts complained of – since they are the advertisers and are liable under California Business & Professions Code 17529.5.
For Defendants to claim that California asserting jurisdiction over it, a Nevada Corporation, is unreasonable, does not comport with the ideas of fairness and due process, and is nonsense – where this Defendant requires subscribers of its web sites to be subject to California law and California jurisdiction. This Court is precisely where this matter should be heard.
The exercise of jurisdiction is appropriate in this venue because Defendants caused an effect in Los Angeles. The harm is caused by Defendant’s failure to label their spam with "SEXUALLY-EXPLICIT" as required by law, and the use of otherwise deceptive headers.
II. FACTUAL BACKGROUND
TJ Web submits a self serving declaration of Jeffrey Macher as their evidence to dispute liability. Mr. Macher states that TJ Web does not send emails or pay people to send email, but he does not state that if they did that he would be the person most knowledgeable. Furthermore, Macher’s statements directly conflict with the statement from “email@example.com.” In the email, Exhibit A, Matt states that my email address will be blocked from future emails. If there is no email marketing, there would be no blocking possible.
California may exercise specific jurisdiction over nonresident defendants when "the state has 'a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.' " Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal.4th 434, 447 (1996) cert. denied 522 U.S. 808, citing Burger King v. Rudzewicz 471 U.S. 462, 473-74 (1985). "The defendant need not ever have been physically present in the forum state for specific jurisdiction to apply." Panavision Intern'al L.P. v. Toeppen, 938 F.Supp 616, 620 (C.D. Cal 1996), aff'd 141 F.3d 1316, 1321 (9th Cir. 1998).
A. Personal Jurisdiction Generally.
Plaintiff agrees with the factors TJ Web cited from Weil and Brown, but not with the application. TJ Web contractually requires each and every member of their website to submit to California jurisdiction. TJ Web agreed to California jurisdiction by contractual consent and by directing their advertising to California residents, and regularly conducting business with residents of California.
B. California Courts May Exercise General Jurisdiction.
In order to establish general jurisdiction, Plaintiff must show that Defendants' "activities within a state are 'substantial' or 'continuous and systematic'." (Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977); Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446-47 (1952).) Plaintiff's Complaint demonstrates Defendants have directed at least 120 unsolicited commercial to Plaintiff in California (See Complaint at 3:15-20). It is undisputed that TJ Web regularly conducts and solicits business from and conducts business with California residents (See Plaintiff’s complaint 2:21-25). While officer of, but not the but not the most knowledgeable person, TJ Web claims that it do not direct its internet activities specifically to California, they do not deny that they conduct substantial, continuous, and systematic business in California.
Plaintiff, in Los Angeles, has received many unlawful email messages, each message requesting (in one form or another) that Plaintiff take some action that would result in commercial benefit to the Defendants. The nature of email advertising suggests that the Defendants have been sending their messages to many other California residents besides Plaintiff. (See, e.g., Ferguson, supra, 94 Cal.App.4th at 1265 (acknowledging that "unsolicited email advertising is sent in 'bulk,' "); see also Verizon Online Services, Inc. v. Ralsky, 203 F.Supp.2d 601, 606 (E.D.Va.2002) (defining spam as "an unsolicited, often commercial, message transmitted through the Internet as a mass mailing to a large number of recipients") (quoting MICROSOFT ENCARTA COLLEGE DICTIONARY 1383 (2001)).) Defendants systematically targeted their commercial advertising to multiple California resident and thereby voluntarily submitted to jurisdiction in California. By sending email to California, Defendants are making sales, soliciting business in the forum, and serving California’s markets. (See Gator.Com Corp. v. L.L. Bean, Inc. 341 F.3d 1072, 1078 (9th Cir. 2003). The exercise of general jurisdiction is appropriate where the “contacts are part of a consistent, ongoing, and sophisticated sales effort that has included California for a number of years.” (Id.) Sending multiple email messages to each of thousands or perhaps millions of California residents is substantial activity within the state. The Defendants have been benefiting economically from their advertising directed to California residents. They should not have the luxury of lobbing their ads over the border, accepting money for promotion of products within the forum, and then being able to avoid responsibility for their actions. Requiring Plaintiff to travel to the Defendants' jurisdictions would be an injustice to Plaintiff, to other recipients of the Defendants' email messages, and to California as a whole. (See West Corp. v. Superior Court (Sanford), 116 Cal.App.4th 1167, 1180 (2004) (California “has a ‘legitimate and compelling interest in preserving a business climate free of fraud and deceptive practices’ “) (quoting Diamond Multimedia Systems, Inc. v. Superior Court, 19 Cal.4th 1036, 1064 (1999)).)
TJ Web regularly conducts business in California. Every transaction with TJ Web is consummated in California. Every member, as part of their membership contract is required to submit to California jurisdiction and venue. TJ Webs’s own statement, indicates that web obtains their pornographic materials that they resell, from California residents. TJ Web authorized sales agent is Paycomm.net, a California Corporation. By its failure to show the income received from California sources, compared others sources, is a tacit admission that a significant amount of its income is derived from California.
C. California May Exercise Specific Jurisdiction Over Those Who Intentionally Direct Email Advertising To California Residents.
Even if this Court declines to exercise general jurisdiction over Defendants, "specific jurisdiction may exist over a defendant who has no physical presence in the forum state." (Edias Software, supra, 947 F. Supp. At 417 (citing Burger King, supra, 471 U.S. at 476).)
The Ninth Circuit has a three part test for determining whether jurisdiction is reasonable:
(1) The non-resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protection of its laws. (2) The claim must be one which arises out of or results from the defendant's forum related activity. (3) Exercise of jurisdiction must be reasonable. (Data Disc, supra, 557 F.2d at 1287; see also Cornelison v. Chaney, 16 Cal.3d 143, 148 (1976).)
The first requirement, that of purposeful availment, is the most critical. (Cybersell v. Cybersell, 139 F.3d 414, 416-417 (9th Cir. 1997).) "The purposeful availment requirement ensures that a nonresident defendant will not be haled into court based upon 'random, fortuitous or attenuated' contacts with the forum state." (Panavision International, L.P. v. Toepen,141 F.3d 1316, 1320 (9th Cir. 1998) (quoting Burger King, supra, 471 U.S. at 475).) Defendant have purposefully availed themselves of the benefits of California by directing misleading commercial solicitations at California residents in the hope of pecuniary gain.
Defendant sent at least 120 unlawful email advertising through equipment located within California to a California resident. TJ Web should not now be rendered immune by the implied claim that they have not exacted sufficient economic benefit from the forum to make it worth their while to defend a lawsuit alleging harm that resulted from Defendant’s unlawful activities. TJ Web’s own attorney admitted that at least some of these emails advertised its web site.
D. Plaintiff's Cause of Action Arises From Defendant’s Contacts With This Forum
Email "does not differ substantially from other recognizable forms of communication, such as traditional mail or phone calls.” (Edias Software, supra, at 418.) California courts have found jurisdiction where there has been only a handful of email messages. (See, e.g., Hall v. Laronde, 56 Cal.App. 4th 1342 (1997).) In this case, Defendants sent, either directly or through their agent, at least 120 email messages to Plaintiff. But for Defendant’s transmission spam to him, Plaintiff would not have suffered injury in California.
E. Defendants Failed to Meet Its Burden Of Showing of Unreasonableness of this Jurisdiction
Where a defendant has purposefully availed itself of the forum state, and the cause of action arises from the Defendant's contacts with the forum state, an inference of reasonableness arises. (Verizon, supra, 203 F.Supp.2d at 621 (quoting Compuserve, 89F.3d at 1268).) To avoid jurisdiction, a defendant must show compelling evidence. The court "should not weigh the controverting assertions of the party seeking dismissal because to do so would allow Defendants to 'avoid personal jurisdiction simply by filing an affidavit denying all jurisdictional facts.' " (Verizon, supra, 203 F.Supp.2d at 609 (quoting Compuserve, 89 F. 3d at 1262).) Defendant knew that they were causing harm in this jurisdiction, but failed to stop. Defendant requires each and every subscriber to its web sites to submit to California jurisdiction and venue. Defendant cannot now claim that this venue is unreasonable to adjudicate the harm it has caused.
F. Defendant chose California Jurisdiction.
G. Defendant Is the Causation of the Complained of Acts
Defendant is advertised in the complained of emails, therefore they are liable as the advertiser. In an attempt to avoid liability, Defendant attempt a strained interpretation of the definition of “advertiser.” One only needs to read the plain language of California Business and Professions Code 17529. and 17529.5.
“(j) There is a need to regulate the advertisers who use spam, as well as the actual spammers, because the actual spammers can be difficult to track down due to some return addresses that show up on the display as "unknown" and many others being obvious fakes and they are often located offshore.
(k) The true beneficiaries of spam are the advertisers who benefit from the marketing derived from the advertisements.”
California Business and Professions Code 17529
“(a)It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:”
California Business and Professions Code 17529.5
The plain language indicates that the owner of the product, or the provider of the service, being advertised, the true beneficiary of the spam, in the unlawful spam is as liable as the person who pressed the “send button.” In Kaufman, the Court differentiates the person “pressed the send button” or fax broadcaster and the advertiser, the true beneficiary of the junk faxes, may have permission when they said,
“A fax broadcaster may send advertisements to those with whom it or the advertiser has an established business relationship.”
Kaufman v. ACS Systems, Inc., 110 Cal. App. 4th 886, 911 (Cal. Ct. App. 2003)
While Defendants are not the ones who pressed the send button, their agents – affiliates, sent the illegal emails on their behalf. The affiliate codes, as shown in Exhibit A, indicates, that the sender is an agent of TJ Web and was to receive payment from TJ Web for their efforts in some manner. Defendant do not deny that they had engage practice of sending spam. Defendants never denied that at any time in the past they had paid people who sent illegal spam on their behalf, only that they specifically did not order someone to send those particular emails to Plaintiff. Even if they did not say, “Send this email to Silverstein” they are still liable for the violation of law.
H. Plaintiff’s evidence and witnesses are located in this Jurisdiction.
Plaintiff, and Plaintiff’s witnesses and their documentary evidence are located in Los Angeles County. Defendant does have documentary evidence located in California, the records of its payment processor – located in Marina Del Rey, California.
"'[U]nless] the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'" ( Price v. Atchison, T. & S.F. Ry. Co., supra, 42 Cal.2d 577, 585.) Here, the balance is clearly in favor of this forum.
Therefore Plaintiff respectfully requests that Defendant’s motion is denied.
Dated: August 11, 2006
F. Bari Nejadpour
Attorney for Plaintiff