Case Name:??? Cecilia De La Cruz v. Nippon Trends Food Service, Inc., et al.
Case No.:??????? 2015-1-CV-277925
Motion to Quash by Specially Appearing Defendant/ Cross-Defendant Mentechno
On November 21, 2014, plaintiff Cecilia De La Cruz (?Plaintiff?) suffered a severe right hand injury/ multiple digit amputation while operating a power press machine at defendant Nippon Trends Food Service, Inc. (?NTFS?). (Complaint, ?GN-1.)? The manufacturer of the power press designed the power press with guards and/or installed guards on the power press. (Id.)? Defendant NTFS removed and/or failed to install guards on the subject power press. (Id.)
On March 11, 2015, Plaintiff filed a Judicial Council form complaint against defendant NTFS and Doe defendants asserting causes of action for (1) general negligence and (2) products liability, respectively.? On April 16, 2015, defendant NTFS filed an answer to the complaint.
On October 29, 2015, Plaintiff filed an amendment substituting Nippon Polystar Co., LTD (?NPC?) for a fictitiously named Doe defendant.? On January 28, 2016, Plaintiff filed an amendment substituting Mentechno Design Office Co., Ltd. (?Mentechno Design?) for a fictitiously named Doe defendant.
On February 16, 2016, defendant NPC filed its answer to the complaint and also filed a cross-complaint against Mentechno Design and Mentechno Office for Design and Manufacturing Co., Ltd. (?Mentechno Office?) for indemnity.
On April 26, 2016, defendant/cross-defendant Mentechno Sekkei Jimusho Kaubshikigaisha (?Mentechno?) filed this motion to quash [service of summons of the complaint and cross-complaint] due to improper service.
- Specially appearing defendant Mentechno?s motion to quash service of the complaint is GRANTED.
?A defendant is under no duty to respond in any way to a defectively served summons.? It makes no difference that defendant had actual knowledge of the action.? Such knowledge does not dispense with statutory requirements for service of summons.?? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2015) ?4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg).)? ?[N]otice does not substitute for proper?service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.?? (Ruttenberg, supra, 53 Cal.App.4th at p. 808.)? ?[I]n California, ?…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.?? (Id. at p. 809.)
Appellant was under no duty to act upon a defectively served summons.? The requirement of notice ?is not satisfied by actual knowledge without notification conforming to the statutory requirements? [citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.
(Kappel, supra, 200 Cal.App.3d at pp. 1466 ? 1467.)
A ?defendant?s first line of attack normally is a motion to quash service for lack of personal jurisdiction under Code of Civil Procedure section 418.10, subdivision (a)(1).? The same motion is used to attack defects in the manner in which summons was issued or served.?? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2015) ?3:376, p. 3-103.)? ?Without valid service of summons, the court never acquires jurisdiction over defendant.? Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant.?? (Id. at ?4:413, p. 4-67 citing Code Civ. Proc. ?418.10, subd. (a)(1).) Code of Civil Procedure section 418.10, subdivision (a)(1) states, in pertinent part,
A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:? (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.
?[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.?? (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211.)? ?Although the defendant is the moving party, the burden of proof is on the plaintiff.?? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ?3:384, p. 3-105 citing Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793 (Floveyor), et al.)? ?[T]he burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.?? (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize).)? ?Where a motion to quash is made, the burden of proof is on the plaintiff to establish the facts of jurisdiction, by declarations, verified complaint or other evidence.?? (2 Witkin, California Procedure (4th ed. 1996) Jurisdiction, ?211, p. 775 ? 776.)
On February 19, 2016, Plaintiff filed a proof of service of summons on defendant Mentechno Design.? The proof of service indicates the summons, complaint, and other documents were sent ?via Registered First Class International Mail with Return receipt? on February 5, 2016 to ?Mentechno Design Office Co., Ltd, 8-7-36 Higashiaikawa, Kurume-Shi, Fukuoka, Japan 839-0809.?? The proof of service states further that ?Pursuant to the USPS website, defendants received the packet, it was delivered to them on February 13, 2016 at 1:14 p.m.?
?Defendants living in another country can be served with summons in the same was as persons living in other states. ? However, international treaties may limit the manner of service on persons located in signatory countries.? The rules for serving persons in foreign countries are expressly subject to the Hague Service Convention (20 U.S.T. 361 ? 367).? (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ??4:315 ? 4:316, p. 4-55.)? ?Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law. [Citation.] This is true even in cases where the defendant had actual notice of the lawsuit. [Citations.]? (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)
Although Mentechno alludes to the lack of personal jurisdiction, the only legal argument advanced by Mentechno concerns the validity of service.? There is no dispute by either Plaintiff or Mentechno that the Hague Service Convention procedures apply.? The question is whether service of process is properly effectuated under Article 5 or Article 10(a) of the Hague Service Convention.? Mentechno contends service of process must be in accordance with Article 5 which requires the Central Authority of the State (In Japan, the Ministry of Foreign Affairs) to serve the summons and complaint and also requires a full translation.? Plaintiff, on the other hand, contends service is proper pursuant to Article 10(a) which allows a party to ?send judicial documents, by postal channels, directly to persons abroad.?
In moving to quash, Mentechno relies on the Sixth District Court of Appeal opinion in Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043 (Honda) which held service of process by mail to a Japanese corporation was invalid.? The Honda court deemed the language of Article 10(a) allowing a party to ?send? distinguishable from language elsewhere in Article 10 allowing a party to ?effect service.?? ?[I]t is most likely that the drafters of the convention intended, and that Japan understood them to intend, that subparagraph (a) merely authorized the mailing of judicial documents other than the summons, but that ?service? required more rigorous control.? (Honda, supra, 10 Cal.App.4th at p. 1047.)? In addition, the Honda court reasoned:
This interpretation is consistent with the fact that in Japan a private mail service is not authorized, and that service of process in that country cannot be effectuated by either attorneys or lay people, but only through the official action required by the court clerk and also by the mail carrier’s implied-in-law acceptance of the role of a special officer of the court when he delivers the service which has been stamped by the clerk. [Citations.] It seems highly unlikely that Japan, which does not allow its own nationals to serve process by mail, would accept such a service by foreign nationals, and it is even more unlikely that Japan, having rejected mail service by its own nationals and also mail service under subparagraphs (b) and (c) of article 10, of the Treaty would accept an informal mail service under subparagraph (a). Plainly the meaning of the word ?send? was taken by that state to be something other than ?service.?
(Id.)
However, the Sixth District Court of Appeal, in Denlinger v. Chinadotcom Corp. (2003) 110 Cal.App.4th 1396, 1398 (Denlinger) changed course and held that, where no objection is made by the abiding country, Article 10(a) of the Hague Convention does allow service of process by mail.? The Denlinger court addressed its opinion in Honda simply by distinguishing itself.
Quite naturally, respondents rely upon cases reaching a different result. They especially stress Honda Motor Co. Ltd. v. Superior Court, supra, 10 Cal.App.4th 1043, 12 Cal.Rptr.2d 861, the 1992 opinion decided by this court. But Honda did not have the benefit of considering the state department declaration, the Special Commission Reports, the understanding of the signatories, or the Handbook on the Convention. As already noted, these sources are entitled to significant weight in treaty interpretation. (Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. at p. 699?700, 108 S.Ct. 2104.) ?[B]ecause a treaty ratified by the United States is not only the law of the land … [b]ut also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history … and the postratification understanding of the contracting parties.? (Zicherman v. Korean Air Lines Co., supra, 516 U.S. at p. 226, 116 S.Ct. 629.) Also, Honda considered the effect of article 10(a) upon a Japanese defendant, and buttressed its conclusion by emphasizing that private mail service is not authorized in Japan. We are not faced with that circumstance. (Honda Motor Co. v. Superior Court, supra, 10 Cal.App.4th at p. 1047, 12 Cal.Rptr.2d 861.)
(Denlinger, supra, 110 Cal.App.4th at p. 1404; emphasis added.)
Thus, the Denlinger court?s holding leaves open the possibility that service on a Japanese defendants pursuant to Article 10(a) may not be proper.? This same concern is raised in another decision cited by Plaintiff in opposition.? In Roque v. Fuji Heavy Industries, LTD. (Conn. Super. Ct., May 17, 2013, No. CV136032517) 2013 WL 2451306, at *5 (Roque), a Connecticut Superior Court interpreted Article 10(a) to allow service by mail, but cautioned against its use.
[H]owever, this court notes that there may be uncertainty whether a judgment entered by the Superior Court will be honored by Japan in the event that the plaintiff prevails if service is made pursuant to article 10(a). Japan’s representative to the Special Commission on the practical operation of The Hague Apostille, Evidence and Service Conventions (Special Commission), which was charged with interpreting and monitoring compliance with the Hague Convention, reported to the Special Commission regarding article 10(a) that ?Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan … Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power. Nevertheless … the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.? Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of The Hague Apostille, Evidence and Service Conventions, No. 57 (October 28, 2003?November 4, 2003), available at http://www.hcch.net/upload/wop/lse_concl_e.pdf. Other Superior Court judges have also noted that ?before any judgment will be enforced in Japan, the plaintiff here, having chosen service by mail, leaves [it]self open to review by Japanese courts …? Marchinkoski v. Kubota Corp., supra, at Docket No. CV 12 6008033. [?] The court therefore recognizes that while service by mail would be sufficient, service on the Ministry in keeping with article five might be the prudent course.The Roque court then went on to grant the Japanese defendant?s motion to dismiss, but granted the plaintiffs an extension of time with which to re-serve the Japanese defendant.
In this court?s opinion, the Denlinger opinion does not specifically or adequately address the circumstance raised here, the effect of Article 10(a) on a Japanese defendant where Japanese law does not authorize private mail service.? Therefore, in an abundance of caution, defendant Mentechno?s motion to quash service of the complaint by Plaintiff is GRANTED.
- Specially appearing cross-defendant Mentechno?s motion to quash service of the cross-complaint is DENIED without prejudice.
With regard to the cross-complaint, defendant/cross-complainant NPC has not yet filed a proof of service.? In opposition, defendant/cross-complainant NPC confirms that it has attempted to serve Mentechno pursuant to Code of Civil Procedure section 415.30 which allows service by voluntary acknowledgment of receipt.? Where the defendant/ cross-defendant or its agent chooses not to acknowledge receipt by this method, service is not complete and the plaintiff or cross-complainant must effect service by some other method. (See Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ?4:238, p. 4-39.)
In light of this procedural authority, the court agrees with defendant/cross-complainant NPC that defendant/cross-defendant Mentechno?s motion to quash service of the cross-complaint is premature.? There is no evidence before this court that defendant/cross-complainant NPC has made any improper service upon defendant/cross-defendant Mentechno.? Accordingly, cross-defendant Mentechno?s motion to quash service of the cross-complaint by NPS is DENIED without prejudice.