Judge: H. Jay Ford, III, Case: 23SMCV00222, Date: 2023-09-14 Tentative Ruling

Case Number: 23SMCV00222    Hearing Date: September 14, 2023    Dept: O

  Case Name:  Truco v. Lovisoni

SUBJECT:                 MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Sarah Maria Duque Lovisoni

RESP. PARTY:         Plaintiff Alessandro Turco

TENTATIVE RULING

            Defendant Sarah Maria Duque Lovisoni’s Motion to Quash Service of Summons is GRANTED. Plaintiff has failed to meet his burden to show Defendant was properly served with the summons and complaint in Milan, Italy on April 27, 2023 in accordance with Code Civ. Proc. § 413.10(c) and The Hague Convention Article 10(c).

“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 omitted.) The burden must be met by competent evidence in affidavits and authenticated documents...”   Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657–658.

            The California Code of Civil Procedure states that a summons shall be served on a person “[o]utside the United States . . . as directed by a 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(c); see Rockefeller Tech. Invs. (Asia) VII v. Changzhou SinoType Tech. Co., Ltd., 9 Cal. 5th 125, 138 (2020), cert. denied 141 S. Ct. 374 (2020) [“[T]he preemptive effect of the Hague Convention as to service on foreign nationals is beyond dispute.”].)

            Both parties agree that Italy and the United States of America are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Convention”). Convention Done at the Hague November 15, 1965; (Feb. 10, 1969) T.I.A.S. No. 6638.  The Convention states, in pertinent part:

Defendant argues Plaintiff failed to properly serve Defendant under the Hague Convention Article 10(c) by serving Defendant through a “random individual and not a judicial officer working for the Italian Courts.” (Motion, p. 6.).  Defendant cites two Federal District Court rulings, The Knit With v. Knitting Fever, Inc., 2010 WL 2788203, at *9 (E.D. Pa. July 13, 2010) and Osio v. Moros, 2022 WL 17583631, at *4 n.14 (S.D. Fla. Sept. 26, 2022) both of which address service of process in Italy under the Hague Convention.  Both cases rely on a United States Department of State Bureau of Consular Affairs webpage that acknowledges Italy is a party to the Hague Convention (which is undisputed), but also states:

“The Italian Central Authority has informed the Hague Conference for Private International Law that only judicial officers working for the Italian courts may serve documents in Italy (Article 10 (b and c)). Private attorneys or individuals are not authorized to effect service in Italy.  International service of process by registered mail is allowed in Italy, but this method will only record delivery to an address and not to a person.”

 [U.S. State Department, Bureau of Consular Affairs, Italy Judicial Assistance Information, https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/Italy.html].)

This  webpage also has a disclaimer that states “The information provided is for general information only and may not be totally accurate in a specific case questions involving interpretation of specific foreign laws should be addressed to the appropriate foreign authorities or foreign council.”  Defendant requests the Court take judicial notice of this unauthenticated information under Evidence Code §452 arguing “it is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  

Plaintiff, in turn, argues the statement on the U.S. Department of State information page is not correct.  Plaintiff argues “Italy, unlike most member states, is unambiguous that it has “[n]o opposition” to the provisions of Article 10.” Therefore, Plaintiff argues, service of a foreign complaint in Italy by a private person is permitted.  

Plaintiff asks the Court to take judicial notice of the content of documents referenced by links to a webpage that appears to be published by “HCCH.” HHC is described as “[t]he HCCH (Hague Conference on Private International Law – Conférence de La Haye de droit international privé) is an intergovernmental organisation the mandate of which is “the progressive unification of the rules of private international law” (Art. 1 of the Statute).” [See “about” link on HCCH website.] In particular, Plaintiff askes the Court take judicial notice of the information on the Conference’s webpage: “Italy—Central Authority & practical information” that appears to state Italy has “no opposition” to Article 10(b) and 10(c) of the Convention.  Like the U.S. Department of State’ webpage, there is no authentication of this webpage, nor any foundation showing who or how the information in that page for Italy was compiled.

“Judicial notice may be taken of the law of an organization of nations and of foreign nations and public entities in foreign nations. (Evidence Code § 452(f).) Evidence Code § 310 provides that the law of a foreign nation or organization of nations is a question of law to be determined by the court pursuant to the judicial notice provisions. Evidence Code § 452(f), makes this issue a matter of permissive notice (unless a party complies with Evidence Code § 453 and provides sufficient information to the court to enable it to notice the matter). Simons California Evidence Manual § 7:14 Permissive notice—Of foreign law. (2023)

In taking judicial notice, a court may rely on ‘the advice of persons learned in the subject matter ... whether or not furnished by a party.’ (Evid. Code, § 454, subd. (a)(1)[.]) (Citation omitted.)”  Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 358.  Moreover, while the Court can take judicial notice of the existence of these webpages and existence of statements made therein, it is improper to rely on judicially noticed documents to prove disputed facts. [Id. at 360. Emphasis added]. 

More important, the party requesting judicial notice of a foreign law must provide the court with sufficient evidence or data to determine with confidence the existence of the claimed foreign law.  See e.g., Ehret v. Ichioka (1967) 247 Cal.App.2d 637, 644. (“While we may take judicial notice of foreign law, we are not required to do so unless the parties so request and provide adequate data for our inquiry”);  In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 509.  (“While we are authorized to take judicial notice of “[t]he law of ... foreign nations and public entities in foreign nations” (Evid.Code, §§ 452, subd. (f), 453, subd. (b)), we decline to do so here because Wife has submitted insufficient evidence to enable us to determine with confidence either the procedure or the substantive rules Pakistan would employ. (See Evid.Code, § 311, and Assem. Com. on Judiciary, com. (Stats.1965, ch. 299, § 2, eff. Jan. 1, 1967) foll. § 311 (one reason why a court may be unable to determine applicable foreign law is ‘that the parties have not provided the court with sufficient information to make such determination’)”

The Court is not satisfied Plaintiff has provided the Court with sufficient information to to take judicial notice that Plaintiff’s personal service of the summons and complaint in Italy by a private person is proper.  Likewise, the Court is not satisfied Plaintiff has shown the information on the U.S. Department of State’s website that unambiguously states: “[P]rivate attorneys or individuals are not authorized to effect service in Italy” is incorrect.  Defendant has shown this authority has been cited and relied on by two federal courts.  Similarly, the Court’s has not found any authority, analysis, or commentary by anyone that agrees with Plaintiff’s view that a private person can serve a foreign summons and complaint in Italy without requesting service through Italy’s Central Authority (Article 3 and 4), and without obtaining the Central Authority’s approval of an alternative method of service requested by the applicant. (Article 5(b)) (See, e.g. Thomson Reuters, Litigation and enforcement in Italy: overview, Practical Law Country Q&A 3-502-1881 (2023) (recognizing that in addition to service by the Italy’s Central Authority, other methods of service in Italy include: “Direct service through an Italian bailiff, [T]ransmission of documents through consular or diplomatic channels between member states' central authorities, [S]ervice through diplomatic or consular agents (only where the document must be served on a citizen of the same member state requesting the service), and Service through postal services.”)

Given Plaintiff has failed to meet prove service of the summons and complaint on the Defendant in Italy complied with the requirements of the Hague Convention, Defendant’s  motion to quash service of process is GRANTED.