Judge: Stephen P. Pfahler, Case: 24STCP01575, Date: 2025-06-03 Tentative Ruling

Case Number: 24STCP01575    Hearing Date: June 3, 2025    Dept: 68

Dept. 68

Date: 6-3-25 c/f 3-19-25

Case: 24STCP01575

Trial Date: N/A

ARBITRATION

MOVING PARTY: Plaintiff, Ross Halperin

RESPONDING PARTY: Unopposed/Defendant, Jonathan Gruber

RELIEF REQUESTED

Motion to Compel Arbitration

SUMMARY OF ACTION

On May 15, 2024, Petitioner/Plaintiff Ross Halperin filed a Petition to Compel Arbitration.

RULING: Denied.

Petitioner/Plaintiff Ross Halperin moves to compel arbitration pursuant to the terms of the Residential Purchase Agreement and Joint Escrow Instructions. Halperin served the notice of hearing and motion to compel arbitration by certified mail and email on October 23, 2024. The petition and notice of hearing were subsequently personally served on Respondent in Wales on March 13, 2025. The motion to compel hearing was continued at the request of Petitioner on March 19, 2025. Notice of the continuance was served by mail and email to Grubner and counsel in Houston, Texas on March 25, 2025. The court electronic filing system shows no appearance by Respondent, opposition or reply on file at the time of the tentative ruling publication cutoff.

(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.

(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision:

(1) Service within this State shall be made in the manner provided by law for the service of summons in an action.

(2) Service outside this State shall be made by mailing the copy of the petition and notice and other papers by registered or certified mail. Personal service is the equivalent of such service by mail. Proof of service by mail shall be made by affidavit showing such mailing together with the return receipt of the United States Post Office bearing the signature of the person on whom service was made. Notwithstanding any other provision of this title, if service is made in the manner provided in this paragraph, the petition may not be heard until at least 30 days after the date of such service.

(c) If the arbitration agreement does not provide the manner in which such service shall be made and the person on whom service is to be made has previously appeared in the proceeding or has previously been served in accordance with subdivision (b) of this section, service shall be made in the manner provided in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code.

Code Civ. Proc., § 1290.4                    

The agreement only provides that arbitration shall be conducted in accordance with Title 9 of Part 3 of the Code of Civil Procedure. Under section 1290.4, the court therefore adheres to the standard for a non-appearing party.

The statute governing service upon a person outside the United States provides as follows: “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).” (Code Civ. Proc., § 413.10, subd. (c).)

“Article 1 of the Convention states that it ‘shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.’”  (Balcom v. Hiller (1996) 46 Cal.App.4th 1758, 1764.) “The Convention describes several methods of effecting service of process. The primary method requires member states to designate a ‘Central Authority’ to receive requests of service, arrange for service of documents, and return proofs of service. (See arts. 2-7, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, reprinted in Fed. Rules Civ. Proc., foll. rule 4, 28 U.S.C.) Alternative methods of service are detailed under articles 8, 9, 10, 11 and 19.” (Denlinger v. Chinadotcom Corp.  (2003) 110 Cal.App.4th 1396, 1399.) Service must “be accomplished in a manner not objected to by” the participating country. (In re Alyssa F. (2003) 112 Cal.App.4th 846, 854.)

Certain districts recognize the “modern view” construing The Hague Convention as permitting “service of process by mail in the absence of specific objection thereto by the adhering country.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal. App. 4th 868, 897.) Service upon a country that is not a signatory to the Hague Convention requires arrangements through the United States embassy located in that country. (State of California v. Western Natural Rubber, Inc. (1991) 235 Cal.App.3d 1495, 1499.) “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. Sup. Ct. (1996) 45 Cal.App.4th 1126, 1136.)

Failure to comply with the Convention renders the service void, even if the defendant has actual notice of the lawsuit. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 794; In re Alyssa F., supra, 112 Cal.App.4th at p. 852 [“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”].)

Nothing in the motion, petition, or notice indicates whether Wales participates in the Hague Convention, or whether counsel in Texas appears on behalf of Respondent. Notwithstanding, According to the United States Department of State, the United Kingdom is a party to the Hague Convention and allows for service by mail as well. The court therefore accepts the proof of service on the petition and notice of hearing.

The issue is with the notice of ruling regarding the continued hearing. Because Respondent has not made an appearance in the action, and it remains unclear whether counsel is accepting service on behalf of the client, the court cannot determine the validity of the notice of the continued hearing to compel arbitration the otherwise unopposed motion. (Code Civ. Proc., § 1014.)

“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice. Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code. ...”  (Code Civ. Proc., § 1010.) “If a document is required to be served by certified or registered mail, electronic service of the document is not authorized.” (Code Civ. Proc., § 1010.6, subd. (a)(2).)

The court cannot therefore verify the validity of the notice of continuance and must deny the motion without prejudice. Petitioner may obtain a new hearing date, and complete service of the notice of hearing date in compliance with standards for a non-appearing defendant or proof of acceptance of service by American counsel.

Defendant to provide notice.