Iscandari v. Kallon
Filed 2/7/13
Iscandari v. Kallon CA1/4
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opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
M. ALIEU
ISCANDARI,
Plaintiff and Appellant,
v.
SHEKU
KALLON et al.,
Defendants and Respondents.
A133328
(Alameda County
Super. Ct. No. HG09449195)
Appellant
M. Alieu Iscandari appeals the order granting respondents’
motion to quash service of summons for lack of
failed to fulfill the “effects test†laid down in Calder v. Jones (1984) 465 U.S. 783, 789 (Calder), and therefore California courts could not properly
exercise jurisdiction over respondents.
Accordingly we affirm the order.
FACTUAL BACKGROUND
Iscandari
is an attorney licensed to practice in California; he maintains a law practice
in Alameda County. In June 2004, he
accepted a one-year contract to serve as a war crimes prosecutor for the
Special Court for Sierra Leone. In
August 2005, Iscandari assisted in prosecuting a
of a woman from Sierra Leone.
New
People Newspaper currently
name="_ftnref2" title="">[2] is
a Georgia corporation that operates an online newspaper accessible throughout
the world over the Internet.
(
The Web site provides news on events and politics relating to Sierra
Leone and the worldwide Sierra Leonean diaspora and is considered in Sierra
Leone to be in opposition to the government.
The Web site is a passive Web site available worldwide. Readers cannot log on to the Web site and do
not pay a subscription. There is no
avenue for readers to comment on news articles.
Respondent
Kallon, a Georgia resident, is the chief executive officer and majority
shareholder of New People Newspaper. Dr.
Patrick Muana, a Texas resident and professor at Texas A & M University,
periodically reviews articles for the New People Newspaper. Dr. Marda Mustapha and John Mannah live in
New York. Mustapha is a professor of
comparative politics.
In
May 2008, New People Newspaper published a series of articles that discussed
Iscandari’s handling of the Arizona wrongful death case, including his
management of settlement money and expenditures he incurred while in Sierra
Leone. The articles were critical of
Iscandari’s professional ethics. In
response to the first article, Iscandari contacted the editor through the link
to the e-mail address featured on the Web site, and requested a
retraction. New People Newspaper
reported on the letter to the editor and in the article put out a call for
Iscandari’s documents or statements that would disprove the authenticity of the
initial report. In a later news story
appearing in a November 2008 column titled “Ariogbo Speaks,†the writer
stated: “Ariogbo wants the whole world
to avoid the lawyer turned 419 scam artist like a plague.â€
Apparently,
prior to filing suit, Iscandari threatened to sue. An e-mail response from the editor included
the following: “We have waited for a
very long time to countersue the last underwear off your sorry backside and get
you disbarred, but we have been held back by wise counsel from our elders.â€
Iscandari
lodged his complaint in April 2009, alleging causes of action for libel, false
light, and intentional and negligent infliction of emotional distress against
New People Newspaper, Kallon, Mustapha, Mauna, and others. Respondents moved to quash service of summons
for lack of personal jurisdiction.
Following a December 2009 hearing, the court continued the motion to
give Iscandari time to conduct discovery.
Following the continued hearing which occurred more than 18 months
later, the trial court concluded that while Iscandari presented evidence that
respondents “were motivated to cause injury to his professional reputation by
actively discouraging readers of New People Newspaper from doing business with
him,†he adduced no evidence that anyone in California other than himself read
the articles or that Iscandari suffered any effects in California. The court quashed service of summons, and
thereafter Iscandari moved unsuccessfully for reconsideration. This appeal followed.
A.
Standard of Review
When
a defendant moves to quash service of process with a challenge to personal
jurisdiction, the plaintiff bears the initial burden of demonstrating the
factual basis justifying the exercise of jurisdiction. If the plaintiff satisfies this burden, it is
up to the defendant to show that the exercise of jurisdiction would be
unreasonable. (Pavlovich v. Superior Court
(2002) 29 Cal.4th 262, 273 (Pavlovich).)
When
the facts giving rise to jurisdiction conflict, we review the trial
court’s factual conclusions for
Companies, Inc. v. Seabest Foods, Inc. (1996)14 Cal.4th 434, 449.) If no conflict exists, the question of
jurisdiction is one of law and we engage in an independent review of the
record. (Ibid.)
B.
Governing Principles
California
courts “may exercise jurisdiction on any basis not inconsistent with the
Constitution of this state or of the United States.†(Code Civ. Proc., § 410.10.) Our exercise of jurisdiction over an
out-of-state defendant comports with our Constitutions “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., supra,
14 Cal.4th at p. 444, quoting Internat.
Shoe Co. v. Washington (1945) 326 U.S. 310, 316.)
We
are concerned in this case whether specific, not general, personal jurisdiction
exists. A California court may exercise
specific jurisdiction over nonresident defendants under these conditions: “(1) ‘the defendant has purposefully availed
himself or herself of forum benefits’ [citation]; (2) ‘the “controversy is
related to or ‘arises out of’ [the] defendant’s contacts with the forum†’
[citation]; and (3) ‘ “the assertion of personal jurisdiction would comport
with ‘fair play and substantial justice’ †’ [citation].†(Pavlovich,
supra, 29 Cal.4th at p. 269.)
The
United States Supreme Court in Calder,
supra, 465 U.S. 783 applied an “effects test†for determining purposeful
availment in the defamation context.
There, the purported libelous newspaper story concerned the California
activities of a California resident, impugning the plaintiff’s professionalism
whose career was centered here. The
article drew on California sources, and the brunt of the harm—namely the
plaintiff’s emotional distress and injury to professional reputation—was
suffered in this state. Under these
circumstances, California was “the focal point both of the story and the harm
suffered†and jurisdiction was properly exerted over the Florida newspaper
persons “based on the ‘effects’ of their Florida conduct in California.†(Id.
at pp. 788-789.) The defendants’
intentional actions were expressly aimed at California. They knew the article in question would
potentially harm the plaintiff in this state where she lived and worked, and in
which the newspaper had its largest circulation. (Id.
at pp. 789-790.)
Under
Calder, the foreseeability of effects
in the forum state is not enough to justify the exercise of long-arm
jurisdiction. Calder thus requires something more than a finding that the harm
caused by the defendant’s intentional conduct is primarily felt within the
forum state. (Pavlovich, supra, 29
Cal.4th at pp. 270-271.) Rather, “the
conduct expressly aimed at or targeting
the forum state in addition to the defendant’s knowledge that his intentional
conduct would cause harm in the forum.â€
(Pavlovich, supra, 29 Cal.4th
at p. 271, fn. omitted.)
Although
nonresident publishers, reporters, and editors may be sued in California for
defamatory material published elsewhere, personal jurisdiction always depends
on the nature and extent of the
particular contacts in the forum state.
Thus, contacts have been deemed insufficient to sustain personal
jurisdiction where circulation in California is insignificant; reporters are
not sent here to develop the story in question; the article is not published to
be transmitted to California newspapers; and the story is of national import
with no expectation of receiving particular attention here. (Sipple
v. Des Moines Register & Tribune Co. (1978) 82 Cal.App.3d 143,
151-152.)
When the scope of personal jurisdiction is based on Internet use, we
use a sliding scale analysis described as follows: “ ‘At one end of the spectrum are situations
where a defendant clearly does business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is
proper. [Citation.] At the opposite end are situations where a
defendant has simply posted information on an Internet Web site which is
accessible to users in foreign jurisdictions.
A passive Web site that does little more than make information available
to those who are interested in it is not grounds for the exercise [of] personal
jurisdiction. [Citation.] The middle ground is occupied by interactive
Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction
is determined by examining the level of interactivity and commercial nature of
the exchange of information that occurs on the Web site.’ †(Pavlovich,
supra, 29 Cal.4th at p. 274.)
In
Pavlovich, the defendant’s company
posted on its Web site the source code of a computer program that would allow a
visitor to the site to overcome the copy control technology for all copyrighted
motion pictures in the United States.
The Web site at issue was a passive site that had no interactive
features, and there was no evidence that any California resident visited or
downloaded the source code. The
defendant was a Texas resident who had no contacts in California. Notwithstanding that the motion picture,
computer, and consumer electronics industries were centered in California, the
defendant’s knowledge that his tortious conduct could harm these industries was
insufficient to satisfy the effects test.
(Pavlovich,
expressly aimed his conduct at or intentionally targeted this state; mere
knowledge of industry-wide effects in the forum states is not enough to
establish express aiming at the forum state under the effects test. (Id.
at pp. 276-278.) Further, nothing
in the record suggested that the defendant encouraged Web site visitors to use
the program illegally and thus his mere awareness that they might do so,
without more, did not show purposeful availment. (Id.
at p. 276.)
C.
Analysis
Here, at the time the articles
in question appeared in a newspaper published on the Web site found at
(
Leonean company. The Web site is a
passive site available worldwide.
Readers do not log on, add content, comment on news postings or pay for
a subscription. None of the individual
defendants in this case live or work in California.
The
focus of the articles had absolutely nothing to do with California and
everything to do with Iscandari’s handling of a wrongful death case brought on
behalf of a Sierra Leonean woman, in Arizona.
The articles also discussed Iscandari’s expenditures and certain of his
activities in Sierra Leone. The
newspaper itself concerns matters relating to Sierra Leone, and the people of
Sierra Leone who have left their native land in diaspora. It operates in opposition to the current
government.
Iscandari
makes much of the fact that he e-mailed the editor, suggesting that this
circumstance renders the Web site interactive.
E-mailing a note to the editor
does little to render the Web site
itself interactive. No one can change the
posted information that is passively made available to anyone who wants to
access the Web site. A passive Web site
that does little more than make information available to those who are
interested in it does not supply grounds for the exercise of personal
jurisdiction. (Pavlovich, supra, 29
Cal.4th at p. 274.)
Iscandari
also makes much of the assertions that the individual respondents knew he lived
in California and was licensed to practice law here, and wanted to get him
disbarred. Such knowledge, he argues,
infuses the tortious publications with purposeful availment because it
satisfies the element of expressly targeting the forum state. First, the evidence was conflicting, the
record does not contain all the evidence that was before the trial court, and
the court did not make a specific finding on this point.
name="_ftnref3" title="">[3] Moreover, Iscandari relies heavily on an
e-mail sent by Ishmaelsowa—a purported pseudonym for respondent Muana—in which
Ishmaelsowa expressed the wish to “get you debarred.†This e-mail was sent months
was threatening legal action.
Additionally, it is not at all apparent that the e-mail was sent to
anyone in California other than Iscandari, and it is abundantly clear that it
was not sent to any entity or functionary that could act, initiate, or pursue a
California attorney disciplinary matter.
To the extent it qualifies—if at all—as a forum-related activity, its
relevance to ascertaining specific jurisdiction in relation to the specific
causes of action alleged in the complaint is nil. (See Jewish
Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045,
1058.)
So,
too, an e-mail from Iscandari to Kallon explaining the California Bar
Association procedure for disciplining attorneys and continuing to plead for
retraction of certain statements was sent after
the posting and threat of litigation.
Therefore, its relevance to establishing respondents’ knowledge that he
was licensed to practice law in California is also nil. In any event, the effects test is not
satisfied by merely asserting that the defendant was aware that the plaintiff’s
principal place of business was located in the forum. (Jewish
Defense Organization Inc. v. Superior Court,
supra, 72 Cal.App.4th at p. 1059
& fn. 3.)
As
the trial court mentioned, testimony was presented that the individual
respondents were motivated to injure Iscandari’s professional reputation to
discouraging readers of New People Newspaper from doing business with him. However, there was no evidence presented that
anyone other than Iscandari read the articles in California, or that the
articles damaged his law practice in California. The articles did not target California or
California residents. California is not mentioned
in the body of the articles,
name="_ftnref4" title="">[4]
nor do the articles mention that Iscandari is licensed to practice law in
the articles. (See Revell v. Lidov (5th Cir. 2002) 317 F.3d 467, 473.)
And
more to the point, Iscandari, by his own acknowledgment, is primarily an
immigration attorney who practices law throughout this country, with a client
base consisting of Sierra Leoneans and persons from West Africa. This underscores that there were no
particular effects suffered in California as distinct from any effects
potentially suffered elsewhere. Moreover,
it is in keeping with the target audience and purpose of the New People Newspaper
that the articles report on an attorney such as Iscandari, whose client base
dovetails with the Sierra Leonean diaspora.
The reporting about Iscandari’s representation of a Sierra Leonean
client never involved any particular targeting of California.
DISPOSITION
For
all these reasons, we conclude that the trial court correctly determined no
defendant was subject to personal jurisdiction in California, and service of
summons was properly quashed. We affirm
the order granting respondents’ motion to quash.
_________________________
Reardon,
Acting P.J.
We concur:
_________________________
Rivera, J.
_________________________
Baskin, J.
Respondents are New People Newspaper, Sheku Kallon, Patrick Muana, Marda
Mustapha and John Mannah.
name="_ftn2" title=""> [2]
In 2008, at the time the articles in question were posted on the Web site, New
People Newspaper was operated by a corporation organized under the laws of
Sierra Leone. After 2008, because of the
perceived hostility of the Sierra Leonean government, a Georgia corporation
assumed operation of the Web site.
