Judge Steven A. Ellis, Case Number: 21STCV32851, Date: 2024-05-17 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV32851, Date: 2024-05-17 Tentative Ruling

Case Number: 21STCV32851 Hearing Date: May 17, 2024 Dept: 29

Motion to Quash filed by Specially Appearing Defendant Fernan Balicoco.

Tentative

The motion is denied.

BACKGROUND

On September 7, 2021, Eduardo Gomez and Jennifer Cruz (collectively “Plaintiffs”) filed a complaint against Adelio Anglito Cruz and Does 1 through 50, asserting causes of action for general negligence and motor vehicle negligence arising out of an alleged accident on June 18, 2020, at or near the intersection of Wilton Place and San Marino Street in Los Angeles.

On November 2, 2021, Plaintiffs amended the complaint to name Fernan Marticio Balicoco (“Defendant”) as Doe 1.

On January 10, 2022, Plaintiffs filed a request to dismiss, with prejudice, the causes of action in the complaint against Defendant Adelio Anglito Cruz (only).

On August 19, 2022, the Court granted Defendant’s first motion to quash service of summons and complaint, based on evidence that Defendant was not in fact validly served by personal service or substitute service (as asserted in proofs of service filed with the Court).

On August 11, 2023, this Court granted the application of Plaintiffs to serve Defendant by publication in The Manila Times (published in Manila, Philippines) and in the Beverly Hills Courier (published in Beverly Hills, California). Proof of publication in the Beverly Hills Courier was filed with the Court on September 13, 2023, and proof of publication in The Manila Times was filed with the Court on April 2, 2024.

On April 22, 2024, Defendant filed this motion to quash service of summons. Plaintiffs filed an opposition on May 6, and Defendant filed a reply on May 8.

LEGAL STANDARD

Proper service of a summons on each defendant is a constitutional and statutory requirement in all civil actions. Without proper service (or, for example, consent or waiver), a court does not acquire jurisdiction over a defendant, and in general any judgment rendered against the defendant is void. (E.g., Kremerman v. White (2021) 71 Cal.App.5th 358, 371; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1231.)

The Code of Civil Procedure provides for service on a defendant within the State of California by four basic methods: (1) personal service; (2) substitute service; (3) service by mail and acknowledgement of receipt; and (4) service by publication. (Code Civ. Proc., §§ 415.10, 415.20, 415.30, 415.50.)

For a defendant located outside of California but within the United States, service may be made using any of these methods, any method authorized by the law of the place where the person is served, or by certified mail with a return receipt. (Code Civ. Proc., §§ 413.10, subd. (b) & 415.40.)

For a defendant located outside of the United States, the rules are slightly more complicated. The United States and more than 80 other countries are signatories to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (the “Hague Service Convention”). Where the Hague Service Convention applies, it preempts state law with regard to service of process, and the parties must comply with the procedures for service set forth in the Convention. (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699, 705; Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co. (2020) 9 Cal.5th 125, 137-138; Code Civ. Proc., § 413.10, subd. (c).)

Where the Hague Service Convention does not apply, service may be made using any of the four methods for service in California, or by certified mail with a return receipt. (Code Civ. Proc., §§ 413.10, subd. (c) & 415.40.) Alternatively, service may be made “as directed by the court in which the action is pending,” or by any method authorized by the law of the place where the person is served “if the court before or after service finds that the service is reasonably calculated to give actual notice.” (Code Civ. Proc., § 413.10, subd. (c).)

A defendant may challenge service through a motion to quash service of the summons filed under Code of Civil Procedure section 418.10. “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also, e.g., Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)

DISCUSSION

As a threshold matter, the Court notes that the parties submit no evidence (or judicially noticeable materials) regarding whether The Philippines is or is not a signatory to the Hague Service Convention.

Absent objection from either party, the Court will take judicial notice of the hcch.net website, which appears to be an official website of an intergovernmental organization named “The Hague Conference on Private International Law” that maintains information regarding the Hague Service Convention and numerous other international “Hague” conventions. The U.S. State Department website (travel.state.gov) provides a link to the hcch.net website for information on the Hague Service Convention. According to the hcch.net website, The Philippines joined the Hague Service Convention in 2020.

The Court also notes, however, that Article 1 of the Hague Service Convention states: “This Convention shall not apply where the address of the person to be served with the document is not known.” (See also Lebel, supra, 210 Cal.App.4th at p. 1161 [quoting Convention].) Here, Plaintiffs have submitted evidence, which the Court previously credited in granting the application for service by publication, and which the Court now credits again, showing that despite their reasonable diligence, Plaintiffs have been unable to locate an address for Defendant in The Philippines. (Application for Publication [filed August 8, 2023], Declaration of Harry Kazakian, ¶¶ 4-9.)

The Court finds that the Hague Service Convention does not apply in this set of factual circumstances. Accordingly, Plaintiffs were not required to serve Defendant through the procedures set forth in the Hague Service Convention.

When the Hague Service Convention does not apply, Code of Civil Procedure section 413.10, subdivision (c), provides that a defendant located outside of the United States may be served “as provided in this chapter” (among other options). “[T]his chapter,” as used in section 413.10, refers to chapter 4 of title 5 of part 2 of the Code of Civil Procedure; chapter 4 runs from section 413.10 through 417.40. That includes the authorization for service by publication, which appears in section 415.50.

Thus, in these circumstances, Plaintiffs were authorized by statute (specifically Code of Civil Procedure section 415.50, as incorporated into section 413.10, subdivision (c)) and the prior Order of this Court to serve Defendant through publication notice. Plaintiffs have submitted the proof to show that they have done so.

Defendant’s motion to quash is denied.

CONCLUSION

The Court DENIES Defendant’s motion to quash.

Plaintiffs are ordered to give notice.