Michael K.

Jeanes, Clerk of Court
*** Filed ***
02/08/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-094339 01/27/2017

CLERK OF THE COURT
HON. DAVID K. UDALL H. Bell
Deputy

TRESONA MULTIMEDIA L L C LARRY A DUNN

v.

BURBANK HIGH SCHOOL VOCAL MUSIC AMY R LEVINE
ASSOCIATION, et al.

MARK T PALIN

UNDER ADVISEMENT RULING

The Court took this matter under advisement after Oral Argument was held on January
13, 2017, on Defendant Brett Carroll’s Motion to Dismiss, Defendants Burbank High School
Vocal Music Association, Ellie Stockwell, Marianne Winters, Geneva Tarandek, Lorna Consoli,
and Charles Rodriguez’s Motion to Dismiss, and Defendants Burbank VMA Boosters and
Volunteer Defendants’ Motion to Strike Plaintiff’s Exhibits to Response to Motion to Dismiss.
The Court has considered the arguments of the parties and the pleadings. The Court makes the
following findings and enters the following orders:

The Court will now consider Defendant Brett Carroll’s Motion to Dismiss. Plaintiff,
Tresona Multimedia, LLC, has brought this action alleging that Defendant intentionally
interfered with their business expectancy with regard to receiving licensing fees. It is Plaintiff’s
contention that Defendant committed copyright infringement by allowing Burbank High
School’s choirs to perform songs without the appropriate licenses. It is Plaintiff’s contention that
Defendants were required to obtain a “custom arrangement license” for each song that the choirs
performed. Plaintiff further requests damages because of Defendants’ actions.

It is Defendant Carroll’s contention that this matter should be dismissed because the
Court lacks personal jurisdiction over him under ARCP 12(b)(2), and that this is the improper

Docket Code 926 Form V000A Page 1
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-094339 01/27/2017

venue under ARCP 12(b)(3) and that the Plaintiff cannot state a claim upon which relief can be
granted under ARCP 12(b)(6).

The Arizona Supreme Court held in N. Propane Gas Co. v. Kipps, 127 Ariz. 522, 525
(1980) that:

“Personal jurisdiction can be exercised only if the defendant has reasonable
notice that an action has been brought and if the defendant has sufficient
connection with the forum so that it is fair to require the defendant to defend
the action in the forum.”

The Arizona Supreme Court gave further guidance with respect to the issue of personal
jurisdiction in Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 270 at 271 (1987). The
Court stated that finding general personal jurisdiction is only available if the “defendant has
‘substantial’ or ‘continuous and systematic contacts’ with the forum state.” Also, personal
jurisdiction is only available to a Plaintiff where they can establish the requisite minimum
contacts between the Defendant and the forum state. The Court also held that the Defendants’
conduct in connection with the state is at such a nature that a Defendant would “…reasonably
anticipate being hauled into court there...” Id. The Court further indicated that an inquire must
be made as to whether or not the defendant purposefully created contacts with the forum state.

The Court finds that Defendant Brett Carroll is a resident of California and the director of
the Burbank High School Choir program, located in California. The Court finds that there is no
evidence that Defendant Carroll entered into Arizona in any way. The Court finds that he did not
recruit students from Arizona, and he did not fundraise in Arizona. The Court finds that the
songs performed by the choir were performed in California, and no other performances were in
Arizona. The Court further finds there is no evidence that Mr. Carroll in any way targeted
Arizona for any of his activities as director of the Burbank High School choir program.

The Court further finds that Plaintiff filed a similar case in the Arizona Federal District
Court. The Court further finds that Plaintiff voluntarily dismissed that case. The Court further
finds the Plaintiff then filed an action with similar allegations as that case in the Central District
Court of California. The Court finds it lacks personal jurisdiction over Defendant Carroll
pursuant to ARCP 12(b)(2).

The Court further finds that Plaintiff has failed to establish any contacts between
Defendant Brett Carroll and the state of Arizona to allow for personal jurisdiction pursuant to
ARCP 12(b)(2). The Court further finds that Arizona courts are an improper forum. The case is
being heard, and should be heard, in the California courts. The Court finds that the Plaintiff has
not met the requirements of ARCP 12(b)(3).
Docket Code 926 Form V000A Page 2
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-094339 01/27/2017

IT IS THEREFORE ORDERED granting Defendant Brett Carroll’s Motion to Dismiss
with prejudice.

The Court will now consider Defendants Burbank High School Vocal Music Association,
Ellie Stockwell, Marianne Winters, Geneva Tarandek, Lorna Consoli, and Charles Rodriguez’s
Motion to Dismiss.

The Court finds that the listed Defendants in this motion are parent volunteers of the
Burbank High School Vocal Music Association Booster Club, and they are requesting the Court
dismiss this matter under ARCP 12(b)(2) and ARCP 12(b)(6).

As stated previously in this ruling, the Court will now consider the elements of personal
jurisdiction with respect to these Defendants. The Court finds that all the Defendants are located
in the state of California, and that none of the choir performances ever took place in the state of
Arizona. The Court further finds there were no fundraising or recruiting activities done by these
Defendants in the state of Arizona. The Court further finds that the booster club is a non-profit
organization to assist with and raise money for the choir. The Court finds that the Plaintiff
cannot prove that there are sufficient minimum contacts between the Defendants and the state of
Arizona. The Court further finds there is no evidence that a tort occurred in the state of Arizona,
in light of the fact that all of the performances occurred in California. Therefore, the Court finds
that there is no personal jurisdiction with respect to these Defendants under ARCP 12(b)(2).

IT IS ORDERED granting Defendants Burbank High School Vocal Music Association,
Ellie Stockwell, Marianne Winters, Geneva Tarandek, Lorna Consoli, and Charles Rodriguez’s
Motion to Dismiss with prejudice.

In light of the fact the Court found that there is no personal jurisdiction with respect to
Defendant Carroll or to the Defendants of the Burbank High School Vocal Music Association,
the Court will not consider Defendants’ claim that the matter should be dismissed pursuant to the
rule ARCP 12(b)(6).

The Court will now consider Defendants Burbank VMA Boosters and Volunteer
Defendants’ Motion to Strike Plaintiff’s Exhibits to Response to Motion to Dismiss.

In light of the Court’s previous ruling, the Court finds this motion is moot.

IT IS THEREFORE ORDERED denying Defendants Burbank VMA Boosters and
Volunteer Defendants’ Motion to Strike Plaintiff’s Exhibits to Response to Motion to Dismiss.

Docket Code 926 Form V000A Page 3
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-094339 01/27/2017

IT IS FURTHER ORDERED Defendants have 20 days from receipt of this minute entry
to request a motion for attorneys’ fees.

The Court will consider the request and any response by the Plaintiff.

Dated this 7th day of February, 2017

/ s / HONORABLE DAVID K. UDALL

HONORABLE DAVID K. UDALL
JUDICIAL OFFICER OF THE SUPERIOR COURT

NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS
IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE
COURT.

Docket Code 926 Form V000A Page 4

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