Judge: Audra Mori, Case: 21STCV22979, Date: 2023-03-07 Tentative Ruling

Case Number: 21STCV22979    Hearing Date: March 7, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

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. 

This matter was last heard on February 8, 2023.  The same day as the hearing, Plaintiff filed a Further Opposition to the motion to quash.  The Court struck the documents filed February 8, 2023, Plaintiff did not request or obtain leave of court to file the documents.  The hearing on the motion was then continued to March 7, 2023.  Plaintiff was given permission to file any supplemental brief at least nine court days before the continued hearing date.  Defendant was to file any sur-reply five court days before the hearing. 

Plaintiff filed her supplemental brief on February 22, 2023.  Any sur-reply was due on or before February 28, 2023.  As of March 1, 2023, a timely sur-reply has not been filed. 

In her supplemental brief, Plaintiff asserts that on February 14, 2023, she filed a proof of service by Creighton that now complies with CCP § 2015.5.  Plaintiff argues that the service on Defendant meets the service requirements of the Hague Convention because while Defendant contends that Plaintiff did not complete process under Article 5, Plaintiff served Defendant under Article 10 of the Hague Convention. 

The February 14, 2023 proof of service shows the summons, complaint, and related documents were served by Creighton on Defendant on December 17, 2022, at the Fullerton Hotel Sydney, 1 Martin Place, Sydney NSW 2000, Australia.  

2. Motion to Quash Service of Summons

            a. Evidentiary Objections

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 attached 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 attached to Plaintiff’s opposition, a purported Affidavit of Service, is sustained as the affidavit does not comply with CCP § 2015.5.

            b. Analysis

“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].)

(Kott, supra, 45 Cal.App.4th at p. 1134.)

For example, 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.   Defendant contends that Plaintiff was required to serve Defendant with the summons and complaint through Australia’s Central Authority to accomplish service under the 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 of the Hague Convention. 

As both parties acknowledge, the United States and Australia are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.  (20 U.S.T. 361; <https://www.hcch.net/en/states/hcch-members>.)  “Articles 2 through 6 of the Convention establish a system whereby each participating country will organize and designate a ’Central Authority’ to receive, and to reject or to execute, and to certify requests for service of process from parties in other participating states.”  (Balcom, 46 Cal.App.4th at 1764.)  However, as Plaintiff contends, the Hague Convention recognizes other methods of service.  (Id.)  As relevant here, “Article 10 of the Convention states: ‘Provided the State of destination does not object, the present Convention shall not interfere with ... (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.’ This provision contemplates the use of process servers. [Citations.]”  (Id.; see also Whyenlee Indus. Ltd. v Superior Court (2019) 33 Cal.App.5th 364, 371-72 [plaintiff was not required to make request to Hong Kong's central authority before using agent to personally serve defendant in Hong Kong], and St. Ventures (E.D. Cal. 2013) 2013 WL 1749901 at *7 [“In other words, Article 10 authorizes the use of process servers.”].) 

            There is no evidence that Australia objects to Article 10 subdivisions (b) or (c) of the Hague Convention.  (See <https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1062&disp=resdn>; <https://assets.hcch.net/docs/6365f76b-22b3-4bac-82ea-395bf75b2254.pdf>.)  Moreover, numerous Federal District Courts have found that personal service by a process server is permitted in Australia.  (See e.g., DFSB Kollective Co., Ltd. v. Tran (N.D. Cal. Dec. 21, 2011) 2011 WL 6730678 at *6 [“Both the Hague Convention[ ] and the rules of civil procedure in New South Wales allow personal service of process on an individual by private-process server.”]; Deckers Outdoor Corp. v. Ozwear Connection Pty. Ltd. (C.D. Cal. 2014) 2014 WL 4679001 at *4 [“[T]he rules of civil procedure of New South Wales allow for personal service of process by private process servers for both individuals and businesses.”]; Gas Sensing Tech. Corp. v. Ashton (D. Wyo. 2018) 353 F. Supp. 3d 1192, 1203 [“Under Australia law, personal service [by a process server] is an acceptable means for accomplishing service.”].)[2]  It appears that New South Wales permits personal service by process servers.  (Uniform Civil Procedure Rules 2005 (NSW) regs. 10.5, 10.10, 10.20-10.22 (Austl.).)[3] 

            In this case, the February 14, 2023 proof of service of summons states that at the time of service, Creighton was at least 18 years of age and not a party to the action.  Creighton personally served the summons and complaint on Defendant in Sydney, New South Wales, Australia on December 17, 2022.  Defendant admits that while he was in the lobby of a hotel in Sydney, a person that identified themselves as Creighton handed Defendant a copy of the summons and complaint.  (Mot. Jacobi Decl. ¶ 5.)  Plaintiff’s counsel adds that it hired “Crowe Foreign Services to serve Defendant, who in turn employed [ ] Creighton.”  (Supplemental Brief filed Feb. 22, 2023, Menoyo Decl. ¶ 5.) 

            Although Plaintiff did not serve Defendant through Australia’s Central Authority, the February 14, 2023 proof of service shows that serve was effectuated on Defendant pursuant to Article 10 of the Hague Convention at the Fullerton Hotel Sydney, 1 Martin Place, Sydney NSW 2000, Australia.  Service was requested by Plaintiff, who is clearly an interested party in this action.  Furthermore, it appears that service was effectuated by a competent person of the State of destination because Creighton was over the age of 18, is not a party to the action, and was employed to serve Defendant.  (See Balcom, 46 Cal.App.4th at 1765.)  Creighton then personally served the summons, complaint, and related documents on Defendant, which Defendant admits to.  Plaintiff, thus, complied with the Hague Convention.  Although permitted to file a sur-reply to address Plaintiff’s supplemental brief, Defendant did not timely file a sur-reply and none has been received.  Defendant does not otherwise establish that service under the Convention was improper.  Therefore, service on Defendant was proper on Defendant under Article 10. 

Defendant’s motion to quash service of the summons and complaint is denied.  Defendant is ordered to file his answer or responsive pleading within 30 days. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 7^th day of March 2023