Civ. Proc. §§417.20; 415.40)
(Article 10(a) Hague Service Convention)
Hearing Date: September 14, 2016
Hearing Time: 2:30 PM
Reservation Number: R-1764865
NOTICE OF MOTION AND MOTION TO DEEM DEFENDANT YANG SERVED PROCESS UNDER CALIFORNIA CODE CIV. PROC. §§ 417.20(d) AND 415.40 OR ARTICLE 10(a) OF THE HAGUE SERVICE CONVENTION
PLEASE TAKE NOTICE that on September 14, 2016, at 2:30 PM., in Department 303 of the above-entitled court, located at George E. McDonald Hall of Justice, 2233 Shoreline Drive, Alameda, California, Plaintiff Dongxiao Yue will, and hereby does, move this Court for an order, to deem defendant Wenbin Yang ("Yang") served process under California Code of Civil Procedure §§417.20(d) and 415.40, or under Article 10(a) of the Hague Service Convention.
This motion is based on this Notice of Motion and the Motion, Plaintiff's Memorandum of Points and Authorities, the Declaration of Dongxiao ("Yue Decl.") being filed concurrently, the pleadings and other papers on file in this case and any other information that may be offered.
MEMORANDUM OF POINTS AND AUTHORITIES
This is an internet defamation and bullying case, arose from Defendants' vicious, defamatory and intimidating web postings targeting Plaintiff and his family. Defendant Wenbin Yang is a resident of Canada. After numerous failed attempts of personal service at Yang's last known address, Plaintiff's process server sent the Summons and Complaint to Yang via international registered mail to an address that Yang provided to this Court. Yang acknowledged that he was properly served process in a recorded telephone conference with Plaintiff, at a Case Management Conference, and in papers Yang submitted to the Court. Plaintiff found that the address Yang provided to the Court was a UPS mailbox. Plaintiff now requests a Court Order to deem Yang served process.
FACTS AND PROCEDURAL BACKGROUND
As alleged in the Verified Complaint ("VC"), Plaintiff administers a Chinese language website at zhenzhubay.com ("ZZB"). Defendant Yang registered at the ZZB and engaged in wide ranging attacks on other persons on ZZB, often using sexually explicit, violent and insulting language. Yang's behavior was not limited to ZZB. Yang has been widely recognized as an online hooligan, banned or shunned by almost all the website he frequented. For instance, Yang had been permanently banned by XYS.ORG over 10 years ago. He was also banned by YEYECLUB.COM due to his abusive conduct towards women there. Yang's verbal assaults against women on YEYECLUB included statements that he would pull down their pants and that he would ride on their shoulder and ask them to count his public hair. As the "admin" of ZZB, Plaintiff repeatedly deleted Yang's offending posts and his accounts on ZZB. Eventually, Yang initiated vicious defamatory attacks on Plaintiff and others. Yang specifically challenged Plaintiff to sue him in California. Failing to dissuade Yang from his illegal conduct, Plaintiff commenced the instant action on June 10, 2015. (VC ¶¶ 6-36.)
Despite Yang's previous online statement that he would be waiting for the American Summons, he played hide-and-seek and posted a message titled "Summons Dead Loop Theory" on ZZB, hinting that he will never be served summons. A Canadian process server made at least five attempts to serve Yang at his last known address: 119 Mintwood Drive, North York, Ontario, Canada, at around 7:05 AM on June 20th, 2015, at 9:30 PM on June 23rd, 2015, at 7:40 PM on July 10, 2015, and at 9:10 AM and 7:20 PM on July 11, 2015. But no one came to answer the door. Mouthon Decl. ¶¶ 2-6.The process server also sent the Summons and Complaint via registered mail to Yang on June 28, 2015, Mouthon Decl. ¶4, with track number RN082491710CA. According to its online tracking service, the Canadian Post Office left two notices for Yang about the registered mail. The registered mail had not been picked up and had been returned to the sender.
On August 6, 2015, Plaintiff filed a motion to deem service on Yang complete by email, citing various federal district and appellate court precedents. Under the threat of default, Yang filed a motion to quash on August 10, 2015. Yang provided the Court with the address of "123 - 5863 Leslie Street, Toronto, Ontario M2H 1J8". On September 24, 2015, the Court noted that Yang could be easily served under CCP §415.40.
Plaintiff, through another process server, Alysa Demetre, sent the Summons and Complaint to Yang on September 25, 2015 via registered mail with return receipt requested. The USPS tracking record showed that this mail was delivered on October 1, 2015. (Yue Decl. ¶7.) On October 8, 2015, Plaintiff conferred with Yang via telephone regarding the upcoming Case Management Conference ("CMC") scheduled for October 27, 2015. During the meet-and-confer, which was recorded upon Yang's request, Yang acknowledged that he had been served by the registered mail of September 25 and he had no objections to the service of process.(Yue Decl. ¶3.) In the case management statement Plaintiff filed on October 12, 2015, Plaintiff noted that the parties agreed that "Defendant Yang had been properly served in accordance of CCP 415.40".
On October 13, 2015, Yang served Plaintiff a set of discovery requests (Yue Decl. ¶4.). Yang stated these discovery requests in the case management statement that he filed.
On October 27, 2015, Yang appeared in the CMC by telephone and through an interpreter, and Plaintiff appeared in person. During the CMC, the presiding Judge asked Yang about the status of service, and Yang confirmed that he had been served process with effective date of October 5th. (Yue Decl. ¶5.)
On October 29, 2015, Yang filed his second motion to quash on the ground that the Court lacked personal jurisdiction over him. In Yang's reply brief, he admitted that "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13, boldface original).
On December 17, 2015, the Court granted in part Yang's motion, on the ground that "Plaintiff has not filed a sufficient Proof of Service of the Summons." The Court noted that because Yang was a Canadian resident, the Hague Service Convention applied.
On December 30, 2015, Plaintiff filed with the Court additional evidence about the delivery of the Summons and Complaint by registered mail. (Yue Decl. ¶7.)
In 2016, Plaintiff found that Yang's address provided to the Court was a UPS mailbox. (Yue Decl. ¶¶9-11.) Plaintiff now moves to deem Yang properly served.
A. YANG HAS BEEN SERVED UNDER CCP §417.20(d)
Under CCP §417.20, "Proof that a summons was served on a person outside this state shall be made ... or (d) By the written admission of the party." The word "or" indicates that subsection (d) is disjunctive of other subsections, including subsection (c). In his court filings, Yang admitted that "Defendant has been served easily when Plaintiff followed the instruction of the Court by using a new address." (Def. Reply, Mot. to Quash, p.7:13-14 (December 14, 2015)). Yang further admitted that "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13, boldface original).
Since Yang has made written admissions to the Court that he has been properly served, his admissions serve as proof that he was served. CCP § 417.20(d).
B. YANG HAS BEEN SERVED UNDER CCP § 415.40
1. The Hague Service Convention Does Not Apply Because Yang's Address is Unknown
Article 1 of
the Hague Service Convention states that "[t]his Convention shall not
apply where the address of the person to be served with the document is not
known." In Buchanan
v. Soto, 241 Cal. App. 4th 1353, 194 Cal. Rptr. 3d 663 (Cal. App. 4th
Dist. 2015), the defendant did not
provide a current address in Mexico and attempted to "keep his exact
whereabouts secret", the court held that "the [Hague Service] Convention
does not apply to situations in which the whereabouts of the defendant cannot
be ascertained despite reasonable diligence." (
process server attempted five times to personally serve Yang at
Thus, despite Plaintiff's best efforts, Yang's whereabouts cannot be ascertained, accordingly, the Hague Service Convention does not apply. (Buchanan at 1366.)
2. Yang has been served under CCP § 415.40
On September 24, 2015, in the Court's order granting Yang's motion to quash, Judge Hayashi noted that Defendant was a resident of Canada, and "Defendant can be served relative easily" under Code of Civil Procedure §415.40. Since the Hague Service Convention does not apply, Yang may be served under California rules, including CCP § 415.40.
After receiving the Summons and Complaint from Plaintiff's process server, in Yang's submissions to the Court, Yang admitted that "Defendant has been served easily when Plaintiff followed the instruction of the Court by using a new address." (Def. Reply, Mot. to Quash, p.7:13-14 (December 14, 2015)). Yang further stated that "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13, boldface original).
Under CCP 417.20(a), "if service is made by mail pursuant to Section 415.40, 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." Since CCP 415.40 is applicable and Yang admitted that he received the Summons and Complaint, he has been properly served.
C. EVEN IF THE HAGUE SERVICE CONVENTION APPLIES, YANG HAS BEEN PROPERLY SERVED UNDER THE CONVENTION
1. Service Of Canadian Defendants By Mail Is Authorized By the Hague Service Convention
As argued above, the Hague Service Convention does not apply because the whereabouts of Yang cannot be ascertained despite reasonable diligence. Even if the Hague Convention applies, Yang has been served under Article 10(a) of the Convention, which states that "[p]rovided the State of destination does not object, the present Convention shall not interfere with ... the freedom to send judicial documents, by postal channels, directly to persons abroad."
interpretation of Article 10(a) of the Hague Service Convention hinged on
whether the word "send" includes "service". In Shoei
Kako Co. v. Superior Court (1973) 33 Cal.App.3d 808 [109 Cal.Rptr. 402],
the First Appellate District of the Court of Appeal of California held that
Article 10(a) of the Hague Service Convention authorizes service of process by
mail in a signatory country which does not object to service by postal
channels. The Court found that the language of Article 10(a) would be rendered
"superfluous unless it was related to the sending of such documents for
the purpose of service." (
In the more recent case
of Denlinger v. Chinadotcom Corp. (2003) 110 Cal. App. 4th 1396,
2 Cal. Rptr. 3d 530, the Sixth Appellate District made a thorough analysis of
Article 10(a) and reached the same conclusion as Shoei Kako. In
so doing, the Denlinger court (1) applied the rules in
interpreting treaties following U.S. Supreme Court precedent; (2) consulted the
"Practical Handbook" on the Hague Service Convention authored by a
special commission comprised of experts chosen by signatory governments; (3)
referenced the treaty interpretations made by the Executive Branch (the U.S.
State Department); (4) considered the understanding of the signatory countries.
The "Service of Process" web page of the U.S. Department of State, in a section titled "Service by International Registered Mail", states that "[s]ervice by registered or certified mail, return receipt requested is an option in many countries in the world." On the country specific page for Canada, the U.S. State Department states that "In its Declarations and Reservations on the Hague Service Convention, Canada did not object to the methods of service under Article 10, and does permit service via postal channels." (boldface added.)
In summary, the overwhelming weight of authority holds that service of process by mail on a Canadian defendant is authorized by Article 10(a) of the Hague Service Convention.
2. Yang Has Been Properly Served Process Under Article 10(a) of the Hague Convention.
As shown above, the U.S. State Department declaration, the understanding of the signatories, and the Handbook on the Convention, and the California appellate court decisions based on them (Shoei Kako, Denlinger, supra.) all concluded that service by mail is authorized under Article 10(a) of the Hague Service Convention if the signatory does not object to service via postal channels. Canada does not object to service by postal channels. Denlinger at 1403. The State Department unambiguously states that "Canada... does permit service via postal channels." Service of process on Yang by mail is proper under the Convention.
service by mail on a Canadian defendant was authorized by Article 10(a) of
For the foregoing reasons, Yang has been properly served process, by written admissions in his court filings (CCP §417.20(d)), by actual delivery of the Summons with Yang's acknowledgement of receipt (CCP §415.40). Also, Yang has been served under Article 10(a) of the Hague Convention if the Court found the Convention applicable. Plaintiff respectfully requests a Court Order to deem Yang served process.
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