Judge: Theresa M. Traber, Case: 23STCV11727, Date: 2024-01-19 Tentative Ruling
Case Number: 23STCV11727 Hearing Date: April 12, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 12, 2024 TRIAL
DATE: NOT SET
CASE: Arturo Montoya-Bautista et al. v.
Architectural Surfaces, Inc., et al.
CASE NO.: 23STCV11727 
MOTION
TO QUASH SERVICE OF SUMMONS AND COMPLAINT
MOVING PARTY: Specially Appearing Defendant Consentino Group, S.A.
RESPONDING PARTY(S): Plaintiffs Arturo
Montoya-Bautista and Magdalena Balderas-Molina
CASE
HISTORY:
·
05/24/23: Complaint filed.
·
12/28/23: Cross-Complaint filed by Lowe’s Home
Centers, LLC
·
12/29/23: Cross-Complaint filed by Jacobe
Enterprises, Inc.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a toxic tort action alleging that Plaintiff Montoya-Bautista
developed silicosis and consequential injuries by breathing in dust from
Defendants’ stone products generated by his work as a fabricator and polisher
of stone countertops.
Specially Appearing Defendant
Consentino Group, S.A. moves to quash
service of the summons and complaint for defective service, or, alternatively,
lack of personal jurisdiction.
TENTATIVE RULING:
Specially Appearing Defendant
Consentino Group’s Motion to Quash Service of the Summons and Complaint is
CONTINUED to June 21, 2024, at 9:00 AM for rescheduling purposes only to permit
Plaintiffs to engage in jurisdictional discovery. The Court also sets a Status
Conference Re: Jurisdictional Discovery for the same date and time. The Court
will set a further hearing on this matter and schedule further briefing in
consultation with the parties at the initial date this motion is to be heard.
Specially
Appearing Defendant will not make a general appearance by responding to
jurisdictional discovery or by appearing to argue this motion at a later
hearing.
DISCUSSION:
Specially Appearing Defendant
Consentino Group, S.A. moves to quash
service of the summons and complaint for defective service, or, alternatively,
lack of personal jurisdiction.
Special Appearance
No motion under Code of Civil Procedure 418.10 “shall be
deemed a general appearance by the defendant.” (Code Civ. Proc. § 418.10(d).)
Here, Specially Appearing Defendant (“Defendant”) brought this motion under
section 418.10. Thus, filing this motion does not constitute a general
appearance.
Legal Standard
On a motion to quash service of the summons and
complaint, the moving party must first present some admissible evidence, such
as declarations or affidavits, to place the issue of minimum contacts before
the Court. (School Dist. of Oskaloosa County v. Superior Court (1997) 58
Cal.App.4th 1126, 1131.) “When a motion to quash is
properly brought, the burden of proof is placed upon the plaintiff to establish
the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148
Cal.App.4th 556, 568; see also Elkman v. National States Ins. Co. (2009)
173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges
jurisdiction by way of a motion to quash, the plaintiff bears the burden of
establishing by a preponderance of the evidence that minimum contacts exist
between the defendant and the forum state to justify imposition of personal
jurisdiction.”].) Evidence of the facts giving rise to personal jurisdiction or
their absence may be in the form of declarations. (Arensen v. Raymond Lee
Organization, Inc. (1973) 31 Cal.App.3d 991, 995.) The Court should
exclude evidence that would be inadmissible at trial. (See, e.g., Judd v.
Superior Court (1976) 60 Cal.App.3d 38, 43-44 [Court of Appeal excluded
inadmissible hearsay evidence offered in support of affirmation of trial
court’s denial of motion to quash, and subsequently reversed the trial court’s
denial].) A non-resident defendant may be subject to either general or specific
jurisdiction. (See Elkman v. National States Insurance Co., supra, 173
Cal.App.4th at 1314.)
Specially Appearing Defendant’s Evidentiary Objections
Specially Appearing
Defendant objects to the numerous exhibits attached to the Declaration of
Raphael Metzger in opposition to this motion. The Court rules on these
objections as follows:
Objection Nos. 1-26: SUSTAINED
as not authenticated.
Plaintiffs’ Evidentiary Objections
Plaintiffs
object to the Declaration of Jorge Cuervo Vela in support of Specially
Appearing Defendant’s Motion. The Court rules on these objections as follows:
Objection No. 1: OVERRULED. This statement does not
lack foundation nor is it hearsay. An executive may testify as to matters
concerning a business after review of the business’s records.
Objection No. 2-4: OVERRULED. Objections go to
weight, not admissibility.
Plaintiff’s Requests for Judicial Notice
Plaintiffs
request that the Court take judicial notice of (1) the Hague Service
Convention; (2) Canada’s central authority for service under the Hague
Convention; (3) the United States’ Central Authority under the Hague
Convention; (4) Pages 7 and 8 of the Practical Handbook on the Operation of the
Service Convention published by the Hague Conference on Private International
Law Permanent Bureau in 2016 regarding “place of service as determining
factor,” (5) Page XL of the Glossary of the Practical Handbook; and (6) Rule
4.3 of the Supreme Court Civil Rules of British Columbia Reg. 168/2009.
Plaintiffs’ Requests are GRANTED pursuant to Evidence Code section 452(f) (law
of organization of nations and foreign nations).
Service of the Summons and Complaint
Specially
Appearing Defendant seeks to quash service of the summons and complaint on the
grounds that it was not served in compliance with the Hague Service Convention.
The
undisputed facts are these: Plaintiffs retained the services of Aaron Lukken of
Viking Advocates LLC to arrange for service of process on one of Specially
Appearing Defendant’s executives, Eduardo Consentino, in Vancouver, British
Columbia. (Declaration of Wendy S. Dowse ISO Mot. Exh. 3. ¶¶ 2-3.) Mr. Luken
retained the services of Axis Vero Incorporated, a private investigation firm
based in Canada, to effect service of process in British Columbia. (Id.
¶¶ 1-2.) Axis Vero’s process server, Vladimir Raiman, presented the documents
to Mr. Consentino at a showroom opening event at 1640 West 3rd
Avenue, Vancouver, BC V6J1K2 on Wednesday, September 13, 2023. (Id. ¶¶
3, 7-9.) Plaintiff filed an affidavit on September 25, 2023 from Mr. Raiman
attesting to service on Specially Appearing Defendant. (See generally Dowse
Decl. Exh. 3.)
Specially
Appearing Defendant contends that service of process on Mr. Consentino in
British Columbia on September 13, 2023 was improper because Specially Appearing
Defendant is a Spanish corporation and Mr. Consentino is a Spanish national,
and, therefore, service should have been made in Spain, not Canada, under the
Hague Convention.
1. Application of the
Hague Convention
Plaintiffs
first argue that the Hague Convention does not apply to service of process on a
corporation under California law. According to Plaintiffs, although Code of
Civil Procedure section 413.10(c) specifies that service on persons outside the
United States must be served pursuant to the Hague Service Convention, section
416.10, which governs service on corporations, does not specify location. (Code
Civ. Proc. §§ 413.10(c); 416.10.) Not so. Code of Civil Procedure section 17
expressly defines person as “includ[ing] a corporation as well as a natural
person” throughout the Code. (Code Civ. Proc. § 17(b)(6).) Moreover, as
Specially Appearing Defendant argues, section 416.10 is contained within
Article 4 of Title 5 of Part 2 of the Code of Civil Procedure—an article which
is titled “Persons Upon Whom Summons May Be Served.” As Specially Appearing
Defendants state, section 416.10 describes who may be served on behalf
of a corporation, not the mode of service upon that person or the location
where that person may be served. Section 413.10 governs the choice of law for
service based on the location of the person. Under subdivision (c) of that
section, service on a person outside the United States is subject to the Hague
Service Convention. (Code Civ. Proc § 413.10(c).) As the undisputed facts show
that the party to be served is outside the United States, service on Specially
Appearing Defendant is governed by the Hague Service Convention.
2.
Compliance with the Hague Convention
Plaintiffs
argue in the alternative that, if the Hague Service Convention applies—as the
Court has found—service on Mr. Consentino in British Columbia nevertheless
complied with the Convention.
The Hague Service Convention “is ‘a multilateral treaty
that was formulated in 1964 by the Tenth Session of the Hague Conference of
Private International Law … [and] was intended to provide a simpler way to
serve process abroad, to assure that defendants sued in foreign jurisdictions would
receive actual and timely notice of suit, and to facilitate proof of service
abroad.’” (Rockefeller Technology Investments (Asia) VII v. Changzhou
SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 135.) The United States
was an original signatory, and the treaty was adopted by Spain and Canada in
1987 and 1988, respectively. (Id.; see
https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 [as of January
4, 2024].) The Hague Service Convention provides in Articles 2 through 7 for
the establishment of a central authority within each signatory to receive and
execute requests for service of documents from other countries. (Water
Splash Inc. v. Menon (2017) 518 U.S. 271, 275.) However, a signatory
may consent to methods of service within its boundaries other than a request to
its central authority under Articles 8 through 11. (Volkswagenwerk
Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699.)
The parties agree that the relevant provision that
governs Plaintiffs’ attempt to serve Specially Appearing Defendant through
British Columbia is Article 10. This section provides in relevant part that
“[p]rovided the State of destination does not object,” the Convention “shall
not interfere with . . . the freedom of judicial officers, officials or other
competent persons of the State of origin to effect service of judicial
documents directly through the judicial officers, officials or other competent
persons of the State of destination[.]” (Hague Service Convention, art. 10(b).)
Neither Spain nor Canada have objected to this subdivision. (See https://www.hcch.net/en/states/authorities/detai-ls3/?aid=273
[Spain, as of January 4, 2024]; https://www.hcch.net/en/states/auth-orities/details3/?aid=248
[Canada, as of January 4, 2024].)
Specially Appearing Defendant argues that the “state of
destination” under Article 10, subdivision (b), of the Hague Service Convention
refers to the state in which the party to be served is domiciled. Plaintiffs,
in opposition, argue that this language refers merely to the jurisdiction where
the documents are sent, and imposes no requirements as to the state in which
service must be made. In interpreting treaties, courts must “‘begin with the
text of the treaty and the context in which the written words are used.’” (Water
Splash, supra, 581 U.S. at p. 276, quoting Volkswagenwerk, supra,
486 U.S. at p. 699.) Further, the meaning of the language must be consistent
throughout the Convention. (See Taniguuchi v. Kan Pacific Saipan, Ltd. (2012)
566 U.S. 560, 571 [“identical words used in different parts of the same act are
intended to have the same meaning”].)
The full text of Article 10 states:
Provided the State
of destination does not object, the present Convention shall not interfere with
–
a) the freedom to
send judicial documents, by postal channels, directly to persons abroad,
b) the freedom of
judicial officers, officials or other competent persons of the State of origin
to effect service of judicial documents directly through the judicial officers,
officials or other competent persons of the State of destination,
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.
(Hague Service Convention
art. 10.) Nothing in the Convention itself defines “State of destination.”
However, the stated purpose of the Convention is to improve and simplify the
process of serving documents across international borders. (Hague Convention
preamble.) Article 1 states that the Convention’s procedures are triggered “in
all cases, in civil or commercial matters, where there is occasion to
transmit a judicial or extrajudicial document for service abroad.” (Id.
art. 1 [emphasis added].) Moreover, as Plaintiffs point out, the Hague
Conference on Private International Law Permanent Bureau has published a
Practical Handbook on the convention which defines “State of destination”
simply as “the State where service is, or will be, effected.” (RJN Exh. E.)
Specially
Appearing Defendant attempts to discredit Plaintiffs’ argument by stating that
Plaintiff’s interpretation “has nothing to do with service of a California
summons on a Spanish national.” Specially Appearing Defendant is more correct
than it realizes, because nothing in the Convention bears on who may be served
or where they must be served, only how service must be made. With respect to
Article 10 in particular, the Convention does not describe who may be served:
it describes who may effect service. Put differently, this
subdivision states that service may be effectuated by transferring documents
from a person competent to effect service in the origin state (here,
California) directly to a person competent to effect service in the state where
service is intended to be made (here, Canada), as opposed to sending those
documents to the Canadian central authority. Nothing in this provision nor any
other provision of the Convention imposes any restriction on service based on
the nationality or residence of the person intended to be served. Specially
Appearing Defendant’s interpretation, which conflates “destination” with
“domicile,” is contrary to both the plain meaning of the Convention’s language
and with the definition applied by the Hague Conference on Private
International Law Permanent Bureau. (RJN Exh. E.) Thus, if service complies
with the law of the state from which the documents originate, and with the law
of the state where service is attempted, whether or not the recipient is
a resident of the latter state, and neither state has objected to Article 10,
then service is proper under the Hague Convention.
Here, the
documents were conveyed from Plaintiff’s counsel, who may serve documents under
Code of Civil Procedure section 414.10, to Vladimir Raiman, who is authorized
to effect service in British Columbia. (See Dowse Decl. Exh. 3 ¶ 1.) California
law authorizes a corporation to be served by delivering a copy of the summons
and complaint to the president, CEO, or other head of the corporation, a vice
president, secretary, treasurer, controller or chief financial officer, a
general manager, or a person authorized to receive service of process. (Code
Civ. Proc. § 416.10(b).) Rule 4.3 of the Supreme Court Civil Rules of British
Columbia Reg. 168/2009 authorizes personal service to be effected on a
corporation by, inter alia, leaving a copy with a chief officer or other
agent of the corporation. (Supreme Ct. Civ. R. B.C. Reg. 168/2009 Rule
4.3(2)(b)(i), (iii).) Moreover, for any corporation whose chief place of
business is outside British Columbia, any person who carries on any business of
or for the corporation is an agent. (Id. subd. (2)(b)(iv).) Mr.
Consentino is a vice president of Specially Appearing Defendant who was present
in Vancouver at the opening of a showroom on behalf of his employer. (Dowse
Decl. Exh. 3. ¶¶ 5-7.) Mr. Raiman personally delivered the documents to Mr.
Consentino. (Id. ¶ 7.) Specially Appearing Defendant has therefore been
personally served with the summons and complaint in compliance with the laws of
California and British Columbia.
The Court therefore finds that Plaintiffs have
established that service of process was properly made on Specially Appearing
Defendant. Service of the summons and complaint should not be quashed on this
basis.
Personal Jurisdiction
Specially
Appearing Defendant also contends that the Court lacks either general personal
jurisdiction or specific personal jurisdiction over Consentino Group because it
does not have a sufficient relationship with the State of California. A non-resident defendant may be subject to either general
or specific jurisdiction. (See Elkman v. National States Insurance Co.,
supra, 173 Cal.App.4th at 1314.)
The parties agree that the Court
does not have general jurisdiction over Specially Appearing Defendant. Instead,
Plaintiff contends that the Specially Appearing Defendant is subject only to
specific personal jurisdiction. The Court will therefore confine its analysis
to the question of specific jurisdiction.
“Where
general jurisdiction cannot be established, a court may assume specific
jurisdiction over a defendant in a particular case if the plaintiff shows the
defendant has purposefully availed himself or herself of forum benefits; [i.e.]
the nonresident purposefully directed its activities at forum residents or
purposefully availed itself of the privilege of conducting activities within
the forum state, thus invoking the benefits and protections of local law.
(Hanson v. Denckla (1958) 357 U.S. 235.)
Specific
jurisdiction involves a 3-part test in California: “(1) The nonresident
defendant must do some act or consummate some transaction with the forum or
perform some act by which he purposefully avails himself of the privilege of
conducting activities in the forum, thereby invoking the benefits and
protections of its laws; (2) the claim must be one which arises out of or
results from the defendant's forum-related activities; and (3) exercise of
jurisdiction must be reasonable.” (Panavision International, L.P. v. Toeppen (9th
Cir. 1998) 141 F.3d 1316, 1320 [applying California law].).” (Jewish Defense
Organization, Inc. v. Sup. Ct. of Los Angeles County (Rambam) (1999)
72 Cal.App.4th 1045, 1054.)
Specially
Appearing Defendant argues that it did not purposefully avail itself of the
privilege of conducting activities in California. Purposeful availment in tort cases is based
upon “(1) intentional actions (2) expressly aimed at the forum state (3)
causing harm, the brunt of which is suffered –and which the defendant knows is
likely to be suffered –in the forum state.” (Jewish Defense Organization,
Inc., supra, 72 Cal.App.4th at 1057-58.)
Specially Appearing Defendant’s argument is based on the
declaration of its Vice President for Legal and Compliance, Jorge Vela, who
states that Specially Appearing Defendant is headquartered in Spain, organized
under Spanish law, and operates exclusively in Spain. (Declaration of Jorge
Cuervo Vela ¶4.) Mr. Vela states that Specially Appearing Defendant has never
conducted any business in California and, as a holding company, does not
develop, design, manufacture, distribute, sell, advertise, or market any
products. (Id. ¶¶ 5-6.) According to Mr. Vela, the company which was
responsible for marketing and selling the products at issue in this case is
C&C North America, Inc., an indirect subsidiary of Specially Appearing
Defendant headquartered in Coral Gables, Florida. He also states that C&C and Consentino
Group are separate and independent corporate entities, and that C&C keeps
its own accounts and records and pays and manages its own employees. (Id.
¶¶ 7-8.)
Plaintiffs seek to introduce a bevy of materials,
consisting mostly of news articles and webpages operated by Specially Appearing
Defendant or its subsidiaries. (See Declaration of Raphael Metzger ISO Opp.
Exh. 1.A-Z.) As Plaintiffs acknowledge, these materials are not admissible
because Specially Appearing Defendant has refused to admit to their
authenticity. (See Metzger Decl. ¶¶ 20-21, Exhs. 5-6.) Even if this evidence
were authenticated, the bulk of this evidence has limited probative value. Of
greatest consequence is the evidence that Consentino Group and Consentino North
America share executives (Metzger Decl. Exh. 1.I), and that Consentino’s own
marketing materials refer to its affiliates in the United States as “100%
subsidiaries.” (Exh. 1.D.) These materials are not sufficient to persuade the
Court that Specially Appearing Defendant is an alter ego such that it should be
subject to specific jurisdiction. Plaintiffs candidly acknowledge this
deficiency and request an opportunity to conduct jurisdictional discovery to
unearth evidence of facts which would establish jurisdiction. As such evidence
would naturally be in the exclusive possession of Specially Appearing
Defendant, who has refused to admit even to the authenticity or accuracy of
publications on websites bearing its name or media articles identifying its
executives, the Court finds that discovery is likely to lead to the production
of at least some evidence of facts establishing jurisdiction. (See In re
Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.)
The Court therefore finds that, although Plaintiffs have
not established specific jurisdiction over Specially Appearing Defendant, good
cause exists to continue this motion to permit the parties to engage in
jurisdictional discovery and supplemental briefing on the effects of that
discovery.
CONCLUSION:
Accordingly,
Specially Appearing Defendant Consentino Group’s Motion to Quash Service of the
Summons and Complaint is CONTINUED to June 21, 2024, at 9:00 AM for
rescheduling purposes only to permit Plaintiffs to engage in jurisdictional
discovery. The Court also sets a Status Conference Re: Jurisdictional Discovery
for the same date and time. The Court will set a further hearing on this matter
and schedule further briefing in consultation with the parties at the initial
date this motion is to be heard.
Specially
Appearing Defendant will not make a general appearance by responding to
jurisdictional discovery or by appearing to argue this motion at a later
hearing.
Court
to give notice.
IT IS SO ORDERED.
Dated: April 12, 2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.