Judge: Anne Richardson, Case: 23STCV30515, Date: 2024-04-30 Tentative Ruling

Case Number: 23STCV30515    Hearing Date: April 30, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

Plaintiff Mighty Enterprises, Inc. (Mighty Enterprises) sues Defendants Chung-Hsin Electric & Machinery Manufacturing Corporation (Chung-Hsin) and Does 1 through 100 pursuant to a December 14, 2023, Complaint alleging 14 distinct counts.

On January 2, 2024, Mighty Enterprises filed a proof of service for service on Chung-Hsin. The proof of service reflects personal service of the summons, Complaint, and other documents on Chung-Hsin on December 21, 2023, in New Taipei City, Taiwan.

On January 19, 2024, Chung-Hsin filed a motion to quash service of summons.

On April 15, 2024, Mighty Enterprises filed an opposition to Chung-Hsin’s motion.

On April 23, 2024, Chung-Hsin filed a reply to Mighty Enterprises’ opposition.

Chung-Hsin’s motion is now before the Court.

II. Evidentiary Objections

Reply, Objection Nos. 1-3: SUSTAINED [Cal. Rules of Court, rule 3.1110(g)].

The Court briefly notes that the Court does not accept Chung-Hsin’s reply argument that it could not respond to these objections because the opposition’s points and authorities incorrectly referred to the objections as involving the declaration of Feng Lu, not Victor Cheng. However, the Opposition also correctly refers to the Declaration of Victor Cheng in multiple other places – in the caption and on page 2 of the Notice. The objections correctly refer to Victor Cheng. There was indeed only one declaration submitted with the motion – that of Victor Cheng. Chung-Shin does not challenge the service of the opposition or the objections to the declaration of Victor Cheng attached to the moving papers, either in the reply nor in an objection. Instead, Chung-Shin attempts to leverage a typographical error on the last page of the brief to justify a failure to respond to the objections raised in the opposition. The Court sustains the objections.

III. Motion to Quash Service of Summons: DENIED.

A. Legal Standard

A motion to quash can be brought on the ground that the court lacks personal jurisdiction over the defendant, e.g., because service was improper. (See Code Civ. Proc., § 418.10, subd. (a)(1); see, e.g., Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 433 [defendant filed motion to quash on ground that service on corporation was defective because it did not comply with Code Civ. Proc., § 410, now § 412.30]; County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 446 [defendant filed motion to quash on ground that service was defective because summons did not specify date for answering and appearing].)

The defendant should attach evidence to support its motion. (See School Dist. of Okaloosa Cty. v. Superior Court (1997) 58 Cal.App.4th 1126, 1131 [defendant must present some admissible evidence in form of affidavits or declarations to place issue of lack of jurisdiction before court]; see, e.g., Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 563 [defendant supported motion to quash with declarations]; cf. Floveyor Int’l v. Superior Court (1997) 59 Cal.App.4th 789, 793-794 [“‘A defendant who takes the position that the service of summons as made upon him did not bring him within the jurisdiction of the court’[] may serve and file a notice of motion to quash the service,’” where “‘the effect of such a notice is to place upon the plaintiff the burden of proving the facts that did give the court jurisdiction … [or] the facts requisite to a[] [showing of] effective service,’” citations omitted].)

B. Analysis

1. Relevant Law

“Except as otherwise provided by statute, a summons shall be served on a person:

(a) Within this state, as provided in this chapter.

(b) Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served.

(c) Outside the United States, [1] as provided in this chapter or [2] as directed by the court in which the action is pending, or, [3] if the court before or after service finds that the service is reasonably calculated to give actual notice, [a] as prescribed by the law of the place where the person is served or [b] as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the “Service Abroad of Judicial and Extrajudicial Documents” in Civil or Commercial Matters (Hague Service Convention).”

(Code Civ. Proc., § 413.10 & subds. (a)-(c), brackets added.)

The plaintiff must use the Hague Convention’s service methods if judicial documents must be transmitted to the defendant in a country that has signed the Convention. (Volkswagenwerk A.G. v. Shlunk (1988) 486 U.S. 694, 698-699 (Volkswagenwerk); Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1366.) Service by any other method is void as to signatory countries, even if the method used gives the defendant actual notice of the lawsuit. (Floveyor Internat. v. Superior Court (1997) 59 Cal.App.4th 789, 794.) The plaintiff can also choose to use the Convention’s methods even though they are not required in a particular case. (Volkswagenwerk, supra, at p. 706.)

2. Parties’ Arguments

In its motion, Chung-Shin—a foreign corporation—argues that service of the summons and Complaint should be quashed because service was effected by personal service, which the Taiwan Supreme Court has purportedly held is not recognized in Taiwan. Instead, argues Chung-Hsin, service in Taiwan by foreign courts, a party, or an attorney must be effected pursuant to the laws of Taiwan, which require that foreign individuals or entities request assistance in effecting service in Taiwan and where Taiwan does not recognize personal service or service by mail. Otherwise, Chung-Shin argues that a letter rogatory must be employed for service of process. Chung-Shin also argues that Plaintiff Mighty Enterprises has the burden of showing service was properly effected on Chung-Shin and that Mighty Enterprises cannot meet that burden because service of process here did not follow Taiwanese law.

In support of these arguments, Chung-Shin attaches a declaration from counsel, Victor Cheng, who is a licensed attorney in California and in Taiwan. The declaration purports to translate the relevant pertinent Taiwan Supreme Court decision but does not attach a translator’s certificate as required by the California Rules of Court. (Mot., Cheng Decl., ¶¶ 1-7 [translating the above reference Taiwan Supreme Court decision at ¶ 7], Ex. C [Taiwanese Supreme Court decision].)

In opposition, Mighty Enterprises argues that because Taiwan is not part of the Hague Convention, California law provides that service on Chung-Shin outside of the United States may be effected pursuant to the methods of service authorized by the Code, such as personal service. Mighty Enterprises also objects to the translation of the Taiwan Supreme Court decision on the ground that no proper translator’s certificate was attached to the moving papers, thus failing to comply with the California Rules of Court at rule 3.1110(g). The Court has sustained these objections in Section II above.

In reply, Chung-Shin argues that the correct analysis under Code of Civil Procedure section 413.10, subdivision (c), is whether service in a foreign country complied with the laws of that country and whether such service is reasonably calculated under all circumstances to impart actual notice. Chung-Shin’s reply also seeks to distinguish the case law relied on by the opposition and reiterates the purported Taiwan Supreme Court decision on service of process. Chung-Shin then raises new arguments for the first time on reply. Specifically, for the first time, Chung-Shin argues that Mighty Enterprises has failed to carry its burden to show proper service on Chung-Shin because Mighty Enterprises has failed to show that an authorized agent for Chung-Shin was served with the summons and Complaint. Last, Chung-Shin makes arguments related to the opposition’s objections, which the Court addressed and rejected above in Section II.

3. Court’s Determination

The Court finds in favor of Mighty Enterprises.

First, the Court rejects the reply arguments relating to whether service was effected on a person authorized to receive service of process for Chung-Shin, a corporation. This argument could have been raised in the moving papers but was not. Instead, this argument is raised for the first time in Chung-Shin’s reply in the context of rebutting service as described in the Zih-Han declaration attached to Mighty Enterprises’ opposition. However, Mighty Enterprises filed its proof of service in this action on January 2, 2024, i.e., prior to Chung-Shin filing its motion to quash on January 19, 2024. It follows that prior to filing its motion to quash, Chung-Shin had 17 days to review the proof of service, realize that service of process was effected on a person whom the papers characterize as a security guard, and raise an argument in its motion to the effect that the security guard was not authorized to accept service of the summons and Complaint on Chung-Shin. Courts generally need not accept arguments raised for the first time on reply without good cause explanation as to why points were not raised earlier. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) Here, no such good cause exists. Chung-Shin raised its “proper agent for service” argument for the first time in reply in response to an opposition declaration that raised facts that could have been challenged in the first instance in the moving papers based on the January 2, 2024, proof of service.

Second, Taiwan is not a party to the Hague Convention. (14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (2024) Hague Conference on Private International Law <https://www.hcch.net/en/instruments/conventions/status-table/?cid=17> [as of Apr. 30, 2024] [no mention of Taiwan].) As a result, Mighty Enterprises need not have complied with the Hague Convention’s methods of service. (Volkswagenwerk, supra, 486 U.S. at p. 706; Buchanan, supra, 241 Cal.App.4th at p. 1366.)

Third, because the Hague Convention’s methods for service are not applicable here, the Code of Civil Procedure controls at section 413.10 and provides that “a summons shall be served on a person” “outside the United States, [1] as provided in [Code Civ. Proc., §§ 413.10-418] or [2] as directed by the court in which the action is pending, or, [3] if the court before or after service finds that the service is reasonably calculated to give actual notice, [a] as prescribed by the law of the place where the person is served or [b] as directed by the foreign authority in response to a letter rogatory.” (Code Civ. Proc., § 413.10 & subd. (c), brackets added.) Notably, the use of “or” between the bracketed sections of this statutory subdivision provides three avenues for proper service on a person outside of the United States in instances where the Hague Convention does not apply: (1) as provided by the Code; (2) as permitted by this Court; and (3) as prescribed by law where the person is served or as directed by the foreign authority in a response to a letter rogatory. (Code Civ. Proc., § 413.10, subd. (c).) This is because the ordinary and popular meaning of the word ‘or’ is well settled to connote a disjunction, i.e., the function of the word ‘or’ is to mark an alternative such as ‘either this or that.’ (In re Jesusa V. (2004) 32 Cal.4th 588, 622-623, quoting Houge v. Ford (1955) 44 Cal.2d 706, 712.) Based on this interpretation of the statute, Mighty Enterprises was statutorily entitled to use personal service as the method of service in this action given that personal service is a type of service provided in Code of Civil Procedure section 415.10.

Fourth, the laws of Taiwan are not relevant to the manner of service in this action. Section 413.10 permits service of process on a person in a foreign country pursuant to the laws of that country provided that the Court has first determined that the manner of service provided by that foreign country is reasonably calculated to provide actual service. (Code Civ. Proc., § 413.10 & subd. (c).) However, service here was not effected pursuant to the laws of Taiwan but rather, was effected through personal service. As a result, the Court need not determine whether Mighty Enterprises complied with the laws of Taiwan in effecting service. Plaintiff took the first of the four above-described options for service of process on a person outside of the United States, i.e., personal service. A discussion relating to the remaining three options for service on a person in a foreign country—i.e., pursuant to this Court’s direction, the laws of Taiwan, or the methods prescribed by Taiwan in a response to a letter rogatory—is therefore not relevant.

Fifth, based on the preceding paragraph, it follows that even if the Court had overruled Mighty Enterprises’ objections to the Cheng declaration attached to the moving papers and considered the translation of the purported Taiwan Supreme Court decision raised by Chung-Shin, a consideration of that decision is not necessary to dispose of this motion because service here was effected as provided by the Code, not as provided by Taiwan law.

Sixth, the Court notes that Chung-Shin has failed to point to a treaty between Taiwan and the United States specifically providing that service of process must be effected in Taiwan pursuant to the laws of Taiwan. (See Shoei Kako Co. v. Superior Court (1973) 33 Cal.App.3d 808, 819 [court cannot exercise jurisdiction in violation of international treaty].)

Last, the Court distinguishes the authority relied on by Chung-Shin for the purpose of establishing that the laws of Taiwan should have been followed here for service of process. The moving papers do not cite any California authority holding that when a corporation is being served abroad, service of process must follow the laws of the foreign country, regardless of whether that foreign country is a member of the Hague Convention. The moving papers instead cite the Code of Civil Procedure (Mot., p. 4), Taiwanese law (Mot., pp. 4-6), and California case law limited to stating that the burden of proving that service was properly effected is on the party on whose behalf service is made (Mot., p. 6).

As for the reply, its reliance on AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189 (Alfa-Bank) is misplaced. (Reply, pp. 4-5.) Alfa-Bank involved a case where the court of appeal was asked to determine whether service of process was properly effected on a person in a foreign country pursuant to the laws of that foreign country, with the court of appeal necessarily applying section 413.10 as to bracket [3] above. (See Alfa-Bank, supra, at pp. 204-213 [discussing whether service was proper under Russian law and whether the Russian court’s service in that case comported with due process requirements regarding actual notice].)

In contrast, here the Court is asked to determine whether service may be effected on a person in a foreign country pursuant to the California Code of Civil Procedure. These questions are different where the Hague Convention does not apply. Otherwise stated, the plain language of section 413.10 permits service of process on a person in a foreign country provided that the Hague Convention does not apply. (Cf. Dr. Ing. H.C.F. Porsche A.G. v. Superior Court (1981) 123 Cal.App.3d 755, 758 [service on Porsche by registered mail to Germany with no response from Porsche], 759 [trial court issued order permitting service of process on the California secretary of state], 760-763 [determining that because Germany was part of the Hague Convention and because “service by mail and through diplomatic or consular channels” were “rejected” by Germany, service of process on Porsche was ineffective].)

Chung-Shin’s motion is thus DENIED. 

IV. Conclusion

Defendant Chung-Hsin Electric & Machinery Manufacturing Corporation’s Motion to Quash Service of Summons is DENIED.