Judge: Daniel S. Murphy, Case: 24STCV04340, Date: 2024-05-29 Tentative Ruling

Case Number: 24STCV04340    Hearing Date: May 29, 2024    Dept: 32

BACKGROUND

            On February 21, 2024, Plaintiff Zachary Urbina filed this action against Kendra Rowe, asserting a single cause of action for breach of contract. Plaintiff filed various prior lawsuits against Defendant based on business disputes, which resolved in a settlement agreement dated October 25, 2022. Plaintiff brings this action for breach of the settlement agreement.

            On April 26, 2024, Defendant filed the instant motion to quash service of process. Plaintiff filed his opposition on May 15, 2024. Defendant filed her reply on May 21, 2024.

LEGAL STANDARD

“[T]he court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10).” (Code Civ. Proc, § 410.50(a).) “[A] court acquires jurisdiction over a party by proper service of process or by that party's general appearance.” (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) Actual notice of a lawsuit is not a substitute for proper service of process. (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206.) A defendant may serve and file a notice of motion to quash service of summons on the ground that the court lacks jurisdiction. (Code Civ. Proc., § 418.10(a).)

DISCUSSION

I. Hague Service Convention

Service outside the United States is “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(c).) “Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law.” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

According to a proof of substitute service filed April 4, 2024, the documents were left with Defendant’s mother, Lori Rowe, at 622 Cranford Court, Calgary, Alberta, and then subsequently mailed to the same address. Because the location is outside the U.S., the service is subject to the Hague Service Convention.

a. Waiver

Plaintiff argues that the parties waived compliance with the Hague Convention through the settlement agreement. “[T]he Convention does not apply when parties have agreed to waive formal service of process in favor of a specified type of notification.” (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 145.) In Rockefeller, the parties’ agreement stated that “[t]he Parties shall provide notice in the English language to each other at the addresses set forth in the Agreement via Federal Express or similar courier” and that “[t]he Parties hereby . . . consent to service of process in accord with the notice provisions above.” (Id. at p. 133.)

By contrast, the contractual provisions that Plaintiff relies on are choice-of-law and forum selection clauses. (See Baldwin Decl., Ex. A, §§ 21, 24.) While those clauses require the agreement to be interpreted under California law and for litigation to occur in California Superior Court, they say nothing about service of process. Rockefeller does not stand for the proposition that choice-of-law and forum selection clauses constitute waivers of formal service requirements or the Hague Convention. In fact, the court in Rockefeller specifically distinguished between consenting to California jurisdiction and agreeing to alternative service requirements. (See Rockefeller, supra, 9 Cal.5th at pp. 144-45.) They are not one and the same. Therefore, the parties here did not waive formal compliance with the Hague Convention.

b. Service by Mail

            Nonetheless, “in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” (Rockefeller, supra, 9 Cal.5th at p. 137.) Article 10(a) of the Convention provides that “as long as the receiving state does not object, the Convention does not ‘interfere with … the freedom’ to serve documents through postal channels.” (Ibid.)

            Canada does not object to Article 10(a) or service through postal channels. However, the applicable Canadian law requires service by mail to occur “by recorded mail addressed to the Defendant” with “the original recorded mail receipt (red and white tag if using Canada Post) as well as a signed acknowledgment of receipt in your Affidavit of Service.” (Mtn. 5:18-23.) Additionally, for service by mail outside of California, the proof of service “shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.” (Code Civ. Proc., § 417.20(a).)

Plaintiff does not dispute that these are the requirements for service by mail to Alberta, nor does Plaintiff provide evidence that these requirements were met. Plaintiff argues that because the process server declared that he mailed a copy of the documents to Defendant’s address, he “presumably” used a local Canadian mail service. (Opp. 3:16-18.) This is insufficient to demonstrate that the documents were served according to applicable law as required under Rockefeller.

            Because the parties did not waive compliance with the Hague Convention, and Plaintiff has not demonstrated service in compliance with the Convention and applicable law, the Court finds that service was improper.

II. Substitute Service

            Under California law, substitute service is effectuated by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address, in the presence of a competent member of the household or a person apparently in charge, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and complaint to the same location. (Code Civ. Proc., § 415.20(b).) However, this only applies “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” (Ibid.) This requires “a good faith effort at personal service.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “‘reasonable diligence.’” (Ibid.)

            Here, the proof of service at issue does not contain a declaration of diligence demonstrating a good faith effort at personal service. The affidavit of service attached to Plaintiff’s opposition shows that the process server resorted to substitute service in the first instance, handing the documents to Defendant’s mother immediately upon being informed that Defendant was not present. This does not demonstrate diligence in attempting personal service. Additionally, the subsequent mailing must be by “first-class mail, postage prepaid” (Code Civ. Proc., § 415.20(b), which is also not demonstrated by the proof of service or opposition materials. Therefore, even under California law, Plaintiff has not complied with the applicable requirements for proper service.

            In sum, because the parties did not waive compliance with formal service requirements, and Plaintiff has not demonstrated service in compliance with applicable law, the Court finds that service was improper.

CONCLUSION

            Defendant’s motion to quash is GRANTED.