This case was last updated from Los Angeles County Superior Courts on 09/24/2022 at 03:14:25 (UTC).

CHRISTOPHER AVELLONE, AN INDIVIDUAL VS KARISSA BARROWS, AN INDIVIDUAL, ET AL.

Case Summary

On 06/16/2021 CHRISTOPHER AVELLONE, AN INDIVIDUAL filed a Personal Injury - Assault/Battery/Defamation lawsuit against KARISSA BARROWS, AN INDIVIDUAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD L. FRUIN and THERESA M. TRABER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2573

  • Filing Date:

    06/16/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Assault/Battery/Defamation

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

THERESA M. TRABER

RICHARD L. FRUIN

 

Party Details

Respondent and Plaintiff

AVELLONE CHRISTOPHER

Defendants and Appellants

BARROWS KARISSA

BRISTOL KELLY

Attorney/Law Firm Details

Plaintiff Attorneys

JOHNSON NEVILLE L

MARASHLIAN ALEEZA L.

JOHNSON NEVILLE L.

Defendant Attorney

ALLENDER DANIEL

 

Court Documents

Motion to Quash - MOTION TO QUASH SERVICE OF SUMMONS

7/19/2021: Motion to Quash - MOTION TO QUASH SERVICE OF SUMMONS

Complaint

6/16/2021: Complaint

Notice - NOTICE OF ORDER

5/31/2022: Notice - NOTICE OF ORDER

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER:) OF 05/23/2022

5/23/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER:) OF 05/23/2022

Minute Order - MINUTE ORDER (COURT ORDER:)

5/23/2022: Minute Order - MINUTE ORDER (COURT ORDER:)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER:) OF 02/17/2022

2/17/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER:) OF 02/17/2022

Minute Order - MINUTE ORDER (COURT ORDER:)

2/17/2022: Minute Order - MINUTE ORDER (COURT ORDER:)

Unknown - APPEAL - ORIGINAL CLERK'S TRANSCRIPT 1 - 5 VOLUMES CERTIFIED N.O.A. 10/4/2021; B316206

1/26/2022: Unknown - APPEAL - ORIGINAL CLERK'S TRANSCRIPT 1 - 5 VOLUMES CERTIFIED N.O.A. 10/4/2021; B316206

Appeal - Notice of Filing of Notice of Appeal

10/29/2021: Appeal - Notice of Filing of Notice of Appeal

Appeal - Notice of Default Issued - APPEAL - NOTICE OF DEFAULT ISSUED N.O.A. 10/4/21; B315464

12/21/2021: Appeal - Notice of Default Issued - APPEAL - NOTICE OF DEFAULT ISSUED N.O.A. 10/4/21; B315464

Appeal - Notice Vacating Notice of Default - APPEAL - NOTICE VACATING NOTICE OF DEFAULT N.O.A. 10/4/21; B316206

12/22/2021: Appeal - Notice Vacating Notice of Default - APPEAL - NOTICE VACATING NOTICE OF DEFAULT N.O.A. 10/4/21; B316206

Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL N.O.A. 10/4/21; B316206

12/22/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL N.O.A. 10/4/21; B316206

Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL N.O.A. 10/4/21; B316206

12/22/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL N.O.A. 10/4/21; B316206

Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL N.O.A. 10/4/21; B316206

12/22/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL N.O.A. 10/4/21; B316206

Minute Order - MINUTE ORDER (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...)

9/28/2021: Minute Order - MINUTE ORDER (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...)

Order - FINAL RULING-SPECIAL MOTION TO STRIKE

9/28/2021: Order - FINAL RULING-SPECIAL MOTION TO STRIKE

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/28/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Memorandum of Costs (Summary)

10/4/2021: Memorandum of Costs (Summary)

35 More Documents Available

 

Docket Entries

  • 05/23/2023
  • Hearing05/23/2023 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

    Read MoreRead Less
  • 05/31/2022
  • DocketNotice (of Order); Filed by Christopher Avellone (Plaintiff)

    Read MoreRead Less
  • 05/23/2022
  • Docketat 1:05 PM in Department 47, Theresa M. Traber, Presiding; Court Order

    Read MoreRead Less
  • 05/23/2022
  • DocketMinute Order ( (COURT ORDER:)); Filed by Clerk

    Read MoreRead Less
  • 05/23/2022
  • DocketCertificate of Mailing for ((COURT ORDER:) of 05/23/2022); Filed by Clerk

    Read MoreRead Less
  • 02/17/2022
  • Docketat 6:00 PM in Department 47, Theresa M. Traber, Presiding; Court Order

    Read MoreRead Less
  • 02/17/2022
  • DocketMinute Order ( (COURT ORDER:)); Filed by Clerk

    Read MoreRead Less
  • 02/17/2022
  • DocketCertificate of Mailing for ((COURT ORDER:) of 02/17/2022); Filed by Clerk

    Read MoreRead Less
  • 01/28/2022
  • DocketAppeal Record Delivered; Filed by Clerk

    Read MoreRead Less
  • 01/26/2022
  • DocketAppeal - Original Clerk's Transcript 1 - 5 Volumes Certified (N.O.A. 10/4/2021; B316206); Filed by Clerk

    Read MoreRead Less
42 More Docket Entries
  • 07/14/2021
  • DocketNotice (Notice of Filing Proof of Service on Defendant Kelly Bristol); Filed by Christopher Avellone (Plaintiff)

    Read MoreRead Less
  • 06/22/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 06/21/2021
  • Docketat 5:00 PM in Department 15, Richard L. Fruin, Presiding; Court Order

    Read MoreRead Less
  • 06/21/2021
  • DocketMinute Order ( (Court Order)); Filed by Clerk

    Read MoreRead Less
  • 06/21/2021
  • DocketCertificate of Mailing for ((Court Order) of 06/21/2021); Filed by Clerk

    Read MoreRead Less
  • 06/18/2021
  • DocketChallenge To Judicial Officer - Peremptory (170.6) (filed by plaintiff against the Honorable Richard M. Fruin Jr. - Dept. 15); Filed by Christopher Avellone (Plaintiff)

    Read MoreRead Less
  • 06/16/2021
  • DocketCivil Case Cover Sheet; Filed by Christopher Avellone (Plaintiff)

    Read MoreRead Less
  • 06/16/2021
  • DocketSummons (on Complaint); Filed by Christopher Avellone (Plaintiff)

    Read MoreRead Less
  • 06/16/2021
  • DocketComplaint; Filed by Christopher Avellone (Plaintiff)

    Read MoreRead Less
  • 06/16/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

b"

Case Number: *******2573 Hearing Date: September 28, 2021 Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: September 28, 2021 TRIAL DATE: Not set.
CASE: Christopher Avellone v. Karissa Barrows, et al.
CASE NO.: *******2573
SPECIAL MOTION TO STRIKE (CCP ; 425.16)
MOVING PARTY: Defendants Karissa Barrows and Kelly Bristol (although Bristol’s motion to quash service of summons was granted, so Barrows is the only remaining moving party)
RESPONDING PARTY(S): Plaintiff Christopher Avellone
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a libel action that was filed on June 16, 2021. Plaintiff alleges that Defendants falsely tweeted, among other things, that he preyed on young women at Dragon Con, the comic book convention held in Atlanta.
Defendants (now Defendant Barrows) move to strike the complaint pursuant to CCP ; 425.16.
TENTATIVE RULING:
Defendant Karissa Barrows’s special motion to strike is DENIED.
DISCUSSION:
Anti-SLAPP Special Motion To Strike (CCP ; 425.16)
Moving Defendant Now Solely Karissa Barrows
Although both Defendants Karissa Barrows and Kelly Bristol originally filed this motion, in the interim, this Court granted Defendant Kelly Bristol’s motion to quash service of summons. Accordingly, Defendant Karissa Barrows is the only remaining moving Defendant, and the rest of this motion will refer only to “Defendant” as the moving party.
Timeliness of Motion
An anti-SLAPP motion is to be filed within 60 days after service of the complaint. (CCP ; 425.16(f).) Here, the complaint was served by certified mail on the Defendant on June 18, 2021 and was delivered on June 22, 2021. This motion was filed on July 19, 2021. Thus, it is timely.
Request for Judicial Notice
Plaintiff requests judicial notice of (1)-(4) archived Twitter posts; and (5) an article on social media use in American counties.
These requests are GRANTED per Evidence Code ; 452(h) (matters not reasonably subject to dispute and capable of accurate determination), although none of these materials are judicially noticeable for the truth of the matters asserted therein.
Analysis
Defendant brings an anti-SLAPP special motion to strike Plaintiff’s complaint.
In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (CCP ; 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (CCP ; 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations, the trial court is to consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (CCP ; 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
1. Whether Plaintiff’s Causes of Action Arise Out of an Act in Furtherance of Defendant’s Right of Petition or Free Speech
To satisfy the first prong of the two-prong test, the defendant’s acts underlying the cause of action must themselves have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16(e): (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (CCP ; 425.16(e); City of Cotati, supra, 29 Cal.4th at 78; Equilon Enterprises, supra, 29 Cal.4th at 67.)
In determining whether a cause of action is based on protected activity, we “examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 110, citation omitted.) “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct ... that provides the foundation for the claim.’” (Id. at 111, bold emphasis added, citation omitted.) In other words, CCP ; 425.16 does not apply if Defendant’s constitutionally protected activity is “merely incidental” or “collateral” to the unprotected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Ibid.)
Plaintiff alleges four causes of action for libel per se against Defendant. All four causes of action are based on Tweets Defendant posted on Twitter that Plaintiff alleges are false. (Complaint ¶¶ 21-22, 33-34, 44-45, 55-56.)
Here, all four of Plaintiff’s causes of action are based on protected activity, because the statements in Defendant’s Tweets qualify as “written . . . statements made in a . . . public forum in connection with an issue of public interest” under CCP ; 425.16(e)(3). “It is settled that ‘Web sites accessible to the public . . . are public forums for purposes of the anti-SLAPP statute.’” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366.) This includes social media sites. (See, e.g., Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1252 [holding that posts on Facebook and Instagram were made in a “public forum” within the meaning of CCP ; 425.16(e)(3)].)
In addition, the statements alleged in the complaint, referring to Plaintiff as a predator and warning others of his behavior, qualify as addressing an “issue of public interest.” In general, a “public issue is implicated if the subject of the statement or activity underlying the claim . . . was a person or entity in the public eye.” (Id. at 1254.) Here, the complaint alleges that an article about Plaintiff was revised following Defendant’s statements. (Complaint ¶¶ 21, 27.) This indicates that Plaintiff was already in the public eye and that Defendant’s comments were therefore directed toward someone who was already of public interest. In addition, in light of the prominence of the #metoo movement, the statements at issue “involved a topic of widespread public interest.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.)
Based upon the foregoing discussion, all four of Plaintiff’s causes of action are subject to being stricken pursuant to CCP ; 425.16.
Accordingly, the burden shifts to Plaintiff to demonstrate a probability of prevailing on his claims based upon these allegations.
2. Whether Plaintiff Has Established That There Is A Probability Of Prevailing On His Claims – CCP ¶ 425.16(b)(1).
Plaintiff has the burden on the second prong of a SLAPP analysis to establish that there is a probability he will prevail on his claims. (CCP ; 425.16(b)(1); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
“[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal. Rptr. 2d 397].) “ ‘[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the plaintiff has established that there is a probability that the plaintiff will prevail on the claim” … , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.’ [Citation.] ‘[T]he court's responsibility is to accept as true the evidence favorable to the plaintiff … .’ [Citation.] ‘[T]he defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [105 Cal. Rptr. 3d 683].)
(Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 908-909.)
“We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (; 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700 [61 Cal. Rptr. 3d 29].) [¶] That is the setting in which we determine whether plaintiff has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5 [97 Cal. Rptr. 2d 179, 2 P.3d 27].) In the words of other courts, plaintiff needs to show only a case of ‘minimal merit.’ . . .”
(Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469).
A claim has “minimal merit” if it is “both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the [nonmoving party] is credited.” (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537, citation omitted.) “Because a court is to accept the nonmoving party’s evidence as true, the court is not to “weigh the credibility or comparative probative strength of competing evidence.” (Ibid.) Rather, the Court is required to (1) accept Plaintiff’s evidence as true, and (2) “ask whether, on the basis of that evidence,” Plaintiff has “made a prima facie showing” that he is entitled to judgment in his favor.
To prove his causes of action for libel, Plaintiff must show “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Jackson, supra, 10 Cal.App.5th at 1259.)
Here, Plaintiff has made the required limited showing. Plaintiff has come forward with evidence that statements in Defendant’s Tweets were false and that Defendant was aware of its falsity. (Declaration of Christopher Avellone ¶¶ 5-6, 8-10, 15-21, 24, and Exh. 3-5, 10.) He has also come forward with evidence that these Tweets had a natural tendency to injure or cause him special damage by showing that he has had difficulty finding work in the computer game industry and that former employers have distanced themselves from him. (Avellone Decl. ¶ 27.) This showing is sufficient. As noted above, the Court must accept the nonmoving party’s evidence as true and is not to “weigh the credibility or comparative probative strength of the competing evidence.” (Gruber, supra, 48 Cal.App.5th at 537.) Here, accepting Plaintiff’s evidence as true, he has made a prima facie showing that he is entitled to judgment in his favor.
Accordingly, because Plaintiff has demonstrated a probability of prevailing on the four causes of action in his complaint, the anti-SLAPP special motion to strike is DENIED.
Moving Party to give notice, unless waived.
IT IS SO ORDERED.
Dated: September 28, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
"


b'

Case Number: *******2573 Hearing Date: August 24, 2021 Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 24, 2021 TRIAL DATE: Not set.
CASE: Christopher Avellone v. Karissa Barrows, et al.
CASE NO.: *******2573
(1) MOTION TO QUASH [SERVICE OF SUMMONS]
(2) MOTION TO DISMISS [BASED ON FORUM NON CONVENIENS]
(3) SPECIAL MOTION TO STRIKE (CCP ; 425.16)
MOVING PARTY: (1)-(3) Defendants Karissa Barrows and Kelly Bristol
RESPONDING PARTY(S): (1)-(3) Plaintiff Christopher Avellone
CASE HISTORY:
06/16/21: Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a libel action. Plaintiff alleges that Defendants falsely tweeted, among other things, that he preyed on young women at Dragon Con, the comic book convention held in Atlanta.
Defendants bring a single motion in which they move to (1) quash service of the summons; (2) dismiss for inconvenient forum; and (3) strike the complaint pursuant to CCP ; 425.16.
TENTATIVE RULING:
Defendants’ motion to quash is DENIED.
Defendants’ motion to dismiss is DENIED.
Defendants’ special motion to strike is CONTINUED to September 28, 2021, at 8:30 a.m. No further briefing allowed.
DISCUSSION:
Three Motions in One
Defendants have combined three motions in one: (1) a motion to quash service of the summons for lack of personal jurisdiction, (2) a motion to dismiss based on forum non conveniens, and (3) a special motion to strike pursuant to CCP ; 425.16.
Defendants were required to reserve three separate hearing dates and pay the fees for three separate motions. Instead, Defendants’ initial reservation only indicated “1” motion: the motion to quash service of the summons. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System, disrupts the Court’s calendar, and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.
Generally speaking, when a party improperly combines several motions in one, this Court will only consider the motion that was reserved and for which fees were paid, and the other motions will be taken off calendar or continued. Here, the Court continued the hearing and directed Defendants to remedy the situation by paying two additional filing fees. While Defendants have complied with this order, this does not ameliorate the problem of having three significant motions being heard in a single morning in one case.
Accordingly, the Court will consider both the motion to quash and the motion to dismiss – both of which would moot the special motion to strike if granted – but will CONTINUE the special motion to strike to September 28, 2021, at 8:30 a.m. No further briefing is allowed.
Motion to Quash Service of Summons
Plaintiff’s Request for Judicial Notice
Plaintiff requests judicial notice of (1)-(4) various web pages and (5) an article on social media use in American counties.
Requests 1 to 4 are GRANTED as to the existence of these web pages, not the truth of their contents, per Evidence Code ; 452(h) (matters not reasonably subject to dispute and capable of immediate and accurate determination).
Request No. 5 is DENIED. Plaintiff has not articulated any basis on which the contents of this article could be judicially noticed, and its existence alone is irrelevant to the issues herein.
Analysis
Defendants purport to move to quash service of the summonses issued to them. However, as Plaintiff notes, Defendants have made no separate argument as to this purported motion in their memorandum of points and authorities. Rather, they appear to view their special motion to strike as a proper vehicle through which to move to quash service of the summonses.
“The court may construe the absence of a memorandum as an admission that the motion . . . is not meritorious and cause for its denial.” (CRC 3.1113(a).) Defendants’ only passing reference to personal jurisdiction is in the context of their special motion to strike, not as a separate basis on which to quash service. Defendants attempt to make this type of argument in their reply, but arguments raised for the first time in reply generally are not considered absent a showing of good cause for not raising the arguments earlier, and Defendants have shown none here. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”].)
Even crediting the references to personal jurisdiction within Defendants’ analysis in their special motion to strike, the purported motion to quash is without merit. Plaintiff does not claim that there is general jurisdiction over Defendants, who are Illinois and Oklahoma residents, and Plaintiff has met his burden to show that exercising specific jurisdiction over these Defendants comports with due process.
“Specific jurisdiction may be asserted where the defendant has purposefully availed himself of forum benefits and the controversy is related to or arises out of the defendant’s contacts with the forum.” (Hall v. Laronde (1997) 56 Cal.App.4th 1342, 1346.) (Citation omitted.) Sufficient minimum contacts for specific jurisdiction exist when a nonresident “‘deliberately’ has engaged in significant activities within a [s]tate . . . or has created ‘continuing obligations’ between himself and residents of the forum.” (Ibid.) The exercise of specific jurisdiction must also be fair and reasonable. (Anglo Irish Bank Corp., PLC v. Superior Court (2008) 165 Cal.App.4th 969, 980.)
When determining whether specific jurisdiction exists, courts consider the “relationship among the defendant, the forum, and the litigation.” . . . A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” . . . ; (2) the “controversy is related to or ‘arises out of’ [the] defendant\'s contacts with the forum” . . . ; and (3) “the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’” . . . .
(Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)
The “‘purposeful availment’ requirement ensures that a defendant will not be hailed into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 474.)
Once it has been determined that a defendant purposefully established minimum contacts, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “fair play and substantial justice.” (Id. at 476.) Factors to consider are “the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in obtaining relief.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.) A court must “also weigh in its determination ‘the interstate judicial system’s interest in obtaining the most efficient resolution of the controversies; and the shared interest of the several States in furthering fundamental substantive social policies.’” (Ibid. [citing World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 292].)
Here, Defendant asserts that “Courts consistently hold that posting on social media about a California resident by itself does not establish personal jurisdiction in California.” However, the case that Defendant relies on for this proposition, Burdick v. Superior Court (2015) 233 Cal.App.4th 8, is distinguishable. In the Facebook post at issue in that case, the plaintiffs were not mentioned by name. (Id. at 16.) Here, in contrast, the tweets specifically mention Plaintiff by name.
The Burdick court applied the test laid out in Calder v. Jones (1984) 465 U.S. 783 to conclude that specific jurisdiction was not appropriate based on the facts of that case. Here, however, the facts compel the opposite conclusion. As described in Burdick, the Calder effects test requires a plaintiff to show “(1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm caused by that tort in the forum state such that the forum state was the focal point of the plaintiff’s injury; and (3) the defendant expressly aimed the tortious conduct at the forum state such that the forum state was the focal point of the tortious activity.” (Burdick, supra, 233 Cal.App.4th at 20.) The latter requirement is interpreted to mean that the “defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.” (Ibid.)
Here, Plaintiff has come forward with evidence to satisfy this showing. To the extent that he relies on allegations in his unverified complaint, he has not presented admissible evidence. An “unverified complaint has no evidentiary value in determination of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) Plaintiff has submitted evidence, however, that Plaintiff has felt the brunt of the harm in California, where he resides and works. (Declaration of Christopher Avellone ¶¶ 27-29.) Plaintiff also presents evidence that Defendants knew that Plaintiff would suffer the brunt of the harm in California and specifically aimed conduct at California, by directing tweets at one of Plaintiff’s former employers, Electronic Arts, Inc. (Avellone Decl. ¶ 26 & Exhs. 12, 13.) In addition, as noted above, Defendants’ tweets referred to Plaintiff by name, knowing that he resides in California, suggesting that they would know he would suffer the brunt of the harm there. (Avellone Decl. ¶¶ 25, 26.)
Accordingly, the motion to quash is DENIED.
Motion to Dismiss for Forum Non Conveniens
Defendants also move to dismiss the complaint based on the doctrine of forum non conveniens.
CCP ; Section 410.30(a), which codifies the doctrine of forum non conveniens, states: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” “On a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof. The granting or denial of such a motion is within the trial court\'s discretion, and substantial deference is accorded its determination in this regard.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751, bold emphasis added.)
In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a “suitable” place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. (Citations omitted.)
(Stangvik, supra, 54 Cal.3d 744, 751.)
The balancing of private and public interests is a task squarely within the trial court\'s discretion. (Citation omitted.) . . . As noted in Stangvik, the analysis is twofold. "In determining whether to grant a motion based on forum non conveniens, the court first must make a threshold determination whether the alternate forum is a suitable place for trial. [Citations.] This is a nondiscretionary determination. [Citation.]” (Citations omitted.) Indeed, in Stangvik the Supreme Court expressly rejected defendants\' suggestion that the suitability of the alternative forum is part of the discretionary determination of the balance of conveniences. (Citation omitted.) Only if it finds the alternative forum suitable does the court proceed to the discretionary exercise of balancing the private interests of the litigants and the interests of the public in retaining the action in California. (Citation omitted.) In assessing suitability, however, "There is no balancing of interests in this decision, nor any discretion to be exercised." (Citation omitted.) . . . .
(American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436.)
Here, Defendants have not demonstrated that any alternative jurisdiction is a suitable place for trial where all named Defendants would be subject to personal jurisdiction, suggesting instead that Plaintiff should have filed separate trials in Illinois and Oklahoma. (Motion, at p. 17.) Defendants have not, however, shown that any witness or evidence outside of California will be needed at trial; nor have they shown that separate trials in Illinois and Oklahoma would be any more convenient for witnesses or on any other basis.
Moreover, because Plaintiff is a California resident, his choice of forum is presumed to be convenient.
Next we consider the effect of the residence of the parties in deciding a motion based on forum non conveniens. Many cases hold that the plaintiff\'s choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant. . . . But the reasons advanced for this frequently reiterated rule apply only to residents of the forum state: (1) if the plaintiff is a resident of the jurisdiction in which the suit is filed, the plaintiff\'s choice of forum is presumed to be convenient . . . ; and (2) a state has a strong interest in assuring its own residents an adequate forum for the redress of grievances . . . . Indeed, until the recent amendment of section 410.30, dismissal of an action (as opposed to a stay) was ordinarily not permitted on the basis of inconvenient forum if the plaintiff was a California resident.
. . .
Before deciding whether the private convenience of the parties weighs in favor of plaintiffs or defendants, we consider the interests of the California public in retaining the trial of the actions in this state. Piper held that the jurisdiction with the greater interest should bear the burden of entertaining the litigation. . . .
(Stangvik, supra, 54 Cal.3d at 754-756, bold emphasis and underlining added.)
Here, California unquestionably has a greater interest in this action than either Illinois or Oklahoma would. Defendants have not met their burden of demonstrating that the balance of private and public interests favor separate actions in Illinois and Oklahoma; indeed, Defendants did not devote any discussion to the public interest factors, and very little to the public factors.
The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.
(Id. at 751.)
As noted above, “[o]n a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof. The granting or denial of such a motion is within the trial court\'s discretion, and substantial deference is accorded its determination in this regard.” (Ibid.) Here, Defendants have not met their burden.
Accordingly, the motion to dismiss on the ground of forum non conveniens is DENIED.
Anti-SLAPP Special Motion To Strike (CCP ; 425.16)
As stated above, the special motion to strike is CONTINUED to September 28, 2021, at 8:30 a.m. No further briefing is allowed.
Moving Party to give notice, unless waived.
IT IS SO ORDERED.
Dated: August 24, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
'


b'

Case Number: *******2573 Hearing Date: August 11, 2021 Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 11, 2021 TRIAL DATE: Not set.
CASE: Christopher Avellone v. Karissa Barrows, et al.
CASE NO.: *******2573
DEFENDANTS’ MOTION TO QUASH, MOTION TO STRIKE (ANTI-SLAPP), AND/OR MOTION TO DISMISS
MOVING PARTY: Defendant Defendants Karissa Barrows and Kelly Bristol
RESPONDING PARTY(S): Plaintiff Christopher Avellone
CASE HISTORY:
06/16/21: Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On June 16, 2021, plaintiff Christopher Avellone (“Plaintiff”) filed this action’s complaint (“Complaint”) against defendants Karissa Barrows and Kelly Bristol (collectively, the “Defendants”), wherein Plaintiff asserts 6 counts libel per se against the Defendants.
According to the Complaint, this action arises from Defendants’ June 18, 2020, public statements that insinuated Plaintiff targeted young women, including women under the age of consent, by forcing them to become intoxicated for the purpose of engaging in non-consensual sexual contact. (Complaint, ¶¶ 21–24; Id., Exh. 1.)
Plaintiff has submitted Proofs of Service which reflect that the Defendants were served by mail with copies of the Summons and Complaint on June 18, 2021. The Court notes that the Defendants are not California state residents.
On July 19, 2021, the Defendants filed the pending Motion to Quash Service of Summons on the Defendant pursuant to California Code of Civil Procedure (“Code Civ. Proc.”), section 418.10(a)(1), on the grounds that the Court lacks personal jurisdiction over them.
Notably, the Defendants have combined the pending Motion to Quash with a Motion to Strike (Anti-SLAPP) and/or Motion to Dismiss.
On July 29, 2021, the Plaintiff filed his opposition papers to the pending Motions.
On August 4, 2021, the Defendants filed their reply papers to Plaintiff’s opposition papers.
TENTATIVE RULING:
After considering the evidence and arguments presented in the record, the hearing for Defendants Karissa Barrow’s and Kelly Bristol’s Motion to Quash is CONTINUED to August 24, 2021, at 9:30 a.m.
Furthermore, Defendants Karissa Barrow and Kelly Bristol are ordered to pay the filing fees for the Motion to Strike (Anti-SLAPP) and Motion to Dismiss, in addition to scheduling the respective hearings for these motions, at the same date and time as the hearing for the Motion to Quash.
Moving party to give notice, unless waived.
DISCUSSION:
Motion to Strike and Motion to Dismiss
Here, Defendants move the Court to strike portions of the Complaint and/or dismiss the pending action against them. As previously noted, the pending motion to quash was combined with two additional motions. While the Defendants paid the filing fee for the motion to quash, Defendants have yet to pay the filing fees for the special motion to strike (Anti-SLAPP) and for the motion to dismiss.
With respect to “motions,” Code of Civil Procedure section 1003, provides “[e]very direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Id.) “The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding.” (Code Civ. Proc., ; 1064)
A uniform fee for filing a motion must be paid for each motion listed under Code of Civil Procedure section 1005(a), which includes a motion to quash, motion to dismiss, and motion to strike (anti-SLAPP). (See Govt. Code ; 70617(a)(1).) Payment of filing fees is “both mandatory and jurisdictional.” (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261, 1269.)
In regard to filing motions with the courts, in general, the “papers” pertaining to any one motion may not be combined with the “papers” of a different motion (i.e., motions must be filed separately). California Rules of Court, Rule 3.1112(c), provides that a motion, notice of hearing and points and authorities, i.e., a motion’s “papers,” may be combined in a single document “if the party filing a combined pleading specifies these items separately in the caption of the combined pleading.” That is, Rule 3.1112(c) provides that all papers relating to the same motion or demurrer may be combined, and not that parties may combine papers relating to separate motions.
Here, the Defendants improperly combined all papers for the special motion to strike, motion to dismiss, and motion to quash service into one document. Since the Defendants applied to this Court for three distinct orders, the Defendants have in fact filed three motions. (See Code Civ. Proc., ; 1003.) Hence, Defendants should not have filed the motions together.
In addition, the Defendants scheduled only one hearing and paid the filing fee for only one of the three motions, i.e., the motion to quash. Nonetheless, the motions were “filed” for purposes of jurisdiction. A paper in a case is said to be filed when it is delivered to the clerk and received by him, to be kept with the papers in the cause. (Tregambo v. Comanche Mill & Mining Co. (1881) 57 Cal. 501, 506.)
Nonetheless, Defendants have paid less than they should have for the filing fees of the three pending motions. The fees have not been waived by the Court or its clerk. Further, payment of filing fees is “both mandatory and jurisdictional.” (Hu, supra, 70 Cal.App.4th at 1269.)
Here, the Court cannot rule on the motion to quash without resolving the issues presented by the special motion to strike and motion to dismiss. Under Code of Civil Procedure section 411.21, if a party tenders payment for filing fees in an amount that is less than that required for the filed motion(s), then the court’s clerk “shall” impose an administrative charge and provide mailed notice to the subject party that the amount it tendered for the motion’s filing fee was less than the amount actually required. (Code Civ. Proc., ;; 411.21(a), 411.21(e), 411.21(g).) The affected party has 20 days from the date of mailing of the notice to pay the remaining balance at issue, or else, the court’s clerk “shall” void the filing, i.e., motion, as if it had never been filed. (Code Civ. Proc., ; 411.21(b).)
Thus, the hearing for the Defendants Motion to Quash is continued to allow Defendants to pay the outstanding balance for the filing fees at issue pursuant to Code Civ. Proc., section 411.21.
Accordingly, the hearing for Defendants Karissa Barrow’s and Kelly Bristol’s Motion to Quash is CONTINUED to August 24, 2021, at 9:30 a.m.
Further, Defendants Karissa Barrow and Kelly Bristol are ordered to pay the filing fees for the Motion to Strike (Anti-SLAPP) and Motion to Dismiss, in addition to scheduling the respective hearings for these motions, on the same date and time as the hearing for the pending Motion to Quash.
Moving parties to give notice, unless waived.
IT IS SO ORDERED.
Dated: August 11, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
'


related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer ALLENDER DANIEL