Judge Audra Mori, Case 21STCV22979 2023-02-08 Tentative Ruling

On June 21, 2021, Plaintiff Nicole Pentis (“Plaintiff”) filed this action against Defendant Nicolas Jacobi (“Defendant”), et al. damages arising from a motor vehicle accident.

Specially appearing Defendant now moves to quash service of the summons and complaint arguing that they were not properly served on him.[1] Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts that he is an Australian citizen and was in Australia when Plaintiff attempted to effect service of process on him. Defendant contends, however, that Plaintiff failed to comply with the Hague Convention procedures. In particular, Defendant states that a Jonathan Creighton (“Creighton”) handed him a copy of the summons and complaint in a hotel lobby, but the individual did not identify himself as an agent of Australia's Central Authority or Attorney-General's Department. Defendant asserts that the service of summons is thus void because Plaintiff did not serve Defendant through Australia’s Central Authority in accordance with the Hague Convention.

In opposition, Plaintiff argues that service was effectuated by personally serving the summons and complaint on Defendant in Australia in compliance with Article 10(b) under the Hague Convention. Plaintiff asserts Australia has not objected to Article 10(b), and that a professional process server served Defendant on December 20, 2022. Plaintiff contends that Creighton was an appropriate person to effectuate service, and Plaintiff asserts that Defendant has actual knowledge of the complaint. Plaintiff further requests costs and fees for opposing the motion.

In reply, Defendant asserts that Plaintiff fails to provide any admissible evidence showing that service on Defendant complied with Article 10(b) of the Hague Convention. Additionally, Defendant argues that the authority Plaintiff relies on is inapplicable to this case because Plaintiff’s authority concerns mail service on foreign nationals in Canada. Lastly, Defendant asserts that Plaintiff’s opposition relies entirely on Creighton’s declaration which does not conform with CCP § 2015.5’s requirements.

With his reply, Defendant submits three objections to Plaintiff’s evidence. Objection 1 to a statement in Plaintiff’s counsel’s declaration is sustained. Objection 2 to Exhibit 3 to Plaintiff’s opposition, the unpublished opinion of Monte Cristo Investments, LLC v. Hydroslotter Corp. (2010) 2010 WL 40139, is sustained to the extent that Plaintiff intends for the Court to rely on the unpublished opinion. Objection 3 to Exhibit 4 to Plaintiff’s opposition, a purported Affidavit of Service, is sustained as the affidavit does not comply with CCP § 2015.5.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (CCP § 418.10(a).)

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].)

CCP § 413.10(c) states, “[e]xcept as otherwise provided by statute, a summons shall be served on a person: . . . Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or 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).”

“Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person. [Citation.] This is true even when the party indisputably had notice of the action.” (In re Alyssa F. (2003) 112 Cal.App.4th 846, 852.) “A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg)) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg, supra, 53 Cal.App.4th at p. 808.)

“Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law. . . . The only method of service under California law which does not require the transmission of documents abroad, and consequently does not implicate the Hague Service Convention, is service of summons by publication where the party's address remains unknown during the publication period despite the exercise of reasonable diligence.” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

The Court in Kott provided the following summary of how a party may serve documents pursuant to the Hague Convention:

The Hague Service Convention states each signatory nation shall designate a central authority through which service of process may be effected. (Hague Convention, art. 2.) That authority receives documents and serves them in accordance with either the internal law of the receiving state or a compatible method requested by the sender. The authority then provides the sender with a certificate of service. (Hague Convention, arts. 5, 6.) A state may allow other methods of service within its boundaries. (Hague Convention, arts. 8-11, 19; see also Vokswagenwerk Aktiengesellschaft v. Schlunk [(1988) 486 U.S. 694, 699].)

Article 10, subdivisions (b) and (c) of the Hague Convention also allows service through judicial officers, officials, or other competent persons of the receiving state so long as the receiving state does not object. (See, e.g., Balcom v. Hiller (1996) 46 Cal.App.4th 1758, 1764-1765.)

Here, Defendant primarily contends that service of the summons and complaint on him by Creighton is void because Plaintiff did not serve Defendant through Australia’s Central Authority in accordance with the Hague Convention.

When a defendant files a motion to quash, the burden is on the plaintiff to establish that service of the summons and complaint was proper. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Plaintiff argues that service was properly effectuated on Defendant in compliance with Article 10(b) of the Hague Convention. However, the issue is that Plaintiff has not submitted any admissible or competent evidence to show that service was properly carried out under Article 10(b) of the Hague Convention.

To date, Plaintiff has not filed a copy of the proof of service of the summons and complaint. (California Rules of Court, rule 3.110(b) [“proofs of service on [ ] defendants must be filed with the court within 60 days after the filing of the complaint.”].) Rather, in arguing that Defendant was properly served with the summons and complaint, Plaintiff provides only an Affidavit of Service, which appears to be signed by Creighton, stating that Creighton is a resident of Australia, is over the age of 21, is not a party to this action, and that Creighton served the summons, complaint, and related documents on Plaintiff on December 17, 2022, in the lobby of a hotel in Australia. (Mot. Exh 4.)

However, Defendant’s objection to the affidavit was sustained. The affidavit does not provide where it was executed, and assuming it was executed in Australia, it does not state it that contents are true and correct and that it was executed under penalty of perjury under the laws of the State of California as required by CCP § 2015.5. Out-of-state declarations that do not state they were made ‘under penalty of perjury under the laws of the State of California are not deemed sufficiently reliable to be admitted into evidence. (Bombardier Recreational Products, Inc. v. Dow Chem. Canada ULC (2013) 216 Cal. App. 4th 591, 604 [citing Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610-11[2]].) Indeed, the affidavit does not state that it was signed under penalty of perjury at all.

Plaintiff does not otherwise submit any evidence demonstrating that Defendant was personally served with the summons and complaint or showing that Plaintiff complied with the service requirements of Article 10(b) under the Hague Convention.[3]

Therefore, Defendant’s motion to quash service of the summons and complaint is granted.

[1] Defendant initially filed and served the motion on January 13, 2023, setting it for hearing for February 16, 2023. On January 20, 2023, Defendant filed an amended notice of motion providing that the motion had been rescheduled for hearing on February 7, 2023, to which there were no objections.

[2] According to Kulshrestha, “Section 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law. The Legislature has determined that such knowledge can be inferred from the ‘place of execution’ where the document shows it was signed here. (§ 2015.5.) All other declarations, including those signed in other states, must invoke ‘the laws of the State of California.’ ( Ibid.) Indeed, when lawmakers added this phrase to section 2015.5 in 1980, it was deemed necessary to alert out-of-state declarants that California's perjury laws — which were made extraterritorial at the same time — might apply. (See Pen. Code, §§ 27, subd. (b), 118, subd. (a), 777b.) The lower courts correctly found the present declaration flawed in this regard.” Kulshrestha v. First Union Commercial Corp., 33 Cal.4th 601, 606 (Cal. 2004)

[3] Plaintiff’s counsel’s declaration attached to the opposition does not authenticate any of the attached Exhibits, and none of the Exhibits tend to show on their face that Plaintiff properly served Defendant by personal service in Australia.