Kita v. Super.
Filed 1/16/13
Kita v. Super. Ct. CA2/7
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
TAKAHITO KITA,
Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
KANAKO KITA,
Real Party in Interest.
B239971
(Los Angeles County
Super. Ct. No.
YD058764)
ORIGINAL
PROCEEDING; petition for writ of mandate.
John A. Slawson, Temporary Judge.
Petition granted.
Law
Office of Miyuki Nishimura, Miyuki Nishimura and Robert M. Brodney for
Petitioner.
No
appearance for Respondent.
Law
Office of Irwin M. Friedman and Irwin M. Friedman for Real Party in Interest.
_______________________
INTRODUCTION
Petitioner
Takahito Kita requests that we issue a preemptory writ
of mandate directing the trial court to vacate its February 9, 2012 order denying his motion to quash service of the
interest Kanako Kita and to enter a new order granting
the motion. We grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Takahito
Kita (Husband) and Kanako Kita (Wife) were married on December 18, 2003, in Japan. Their daughter, Yurina, was
born in 2005 in Japan. Their son, Koutaro, was
born in 2008 in Japan. Husband, Wife and their
children are citizens of Japan.
In
2008, Husband’s employer, Fujitsu Ten, a Japanese corporation, temporarily
transferred Husband’s work assignment to Fujitsu Ten Corp. of America
in Torrance, California. His employer sponsored him,
as the principal visa holder, and his family under an E-2 non-immigrant
visa. E-2 visas are only for temporary
employment in the United
States for a limited
time period. Husband’s E-2 visa was set
to expire in 2013.
On
December 25,
2010, Husband learned that Wife had been
having an affair with Hiro Kawata (Kawata) for about a year. When Husband questioned Wife about the affair,
she left their home with their son.
Husband believed their marriage was over and arranged with his employer
to return to Japan with his daughter the next day, December 26. Husband’s E-2 visa was cancelled without
prejudice.
Wife
filed the instant action for marital
dissolution in California on December 27.
Husband
opened a dissolution case in family court in Fukuoka, Japan on January 6, 2011. Husband had a registered California process
server personally serve Wife in Torrance on January 11.
The
Japanese court notified Husband of the first mediation set for February
22. In early February, the clerk at the
Japanese court notified Husband that the court received a letter from counsel
for Wife stating that she would not attend the mediation and had filed her
action in California prior to Husband’s filing in Japan.
On
February 24, 2011, someone dropped off some documents addressed to Husband at
the front desk in the building where he worked.
On
March 1, by special appearance, Husband filed a motion to quash service of
summons and to stay or dismiss the instant action in California. He claimed that summons should be quashed due
to lack of proper service. He also
requested a stay or dismissal of the California action on the grounds of forum
non conveniens. Husband argued that the
Japanese court was a suitable forum, in that all the issues could be litigated
there, a judgment valid in Japan could be obtained there, all parties were
Japanese citizens, and Wife had no legal status in the United States, given
that Husband’s E-2 visa was cancelled.
On
March 17, Wife filed three proofs of service purporting to be for service on
Husband. The first proof of service was
for personal service on “Takahito Kita Sub-Served on Mako Yoshioka.†It stated that, on February 25, 2011, Nick N.
Ichimaru (Ichimaru) personally delivered the summons, petition and other
documents to Mako Yoshioka at the address of “1-2-28 Goshodori, Hyogo-Ku
Kobe-Shi, Hyogo, 652-8510 Japan.†The “name,
address, and telephone number†of the person serving the process appeared as
“Nick N. Ichimaru 1838 Crestwood St., Rancho Palos Verdes, CA 90275.†There was no check mark in the box stating “I
am not a registered California process server†or any of the four other
categories listed on the form.
The
second proof form was for service by mail of the same documents on “Takahito
Kita†on March 4, 2011, addressed to “1-2-28 Goshodori, Hyogo-Ku, Kobe-shi,
Hyogo 652-8510 Japan.â€
The
third proof form was for service by mail of the same documents on “Takahito
Kita†on March 4, 2011, addressed to “1-1-45-713 Goshikiyama, Tarumi-Ku,
Kobe-shi, Hyogo 655-0035 Japan.†Neither
the second nor the third proof of service by mail indicates that the mailing
was by certified return-receipt requested or registered mail.
In
August 2012, the trial court held a hearing on Husband’s motion to quash and,
thereafter, considered written briefs in lieu of closing arguments. Husband filed an opening brief contending
that the manner of service did not comply with the requirements of the Hague
Service Convention, citing, inter alia, Honda
Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043. Wife filed a response brief arguing that
service as effected was sufficient under Denlinger
v. Chinadotcom Corp. (2003) 110 Cal.App.4th 1396. In November, the trial court heard oral
argument. The court directed the parties
to review and submit a briefing upon the case of Lemme v. Wine of Japan Import, Inc. (E.D.N.Y. 1986) 631 F.Supp 456,
which the court believed was controlling.
After hearing additional argument, on February 9, 2012, the trial court
denied the motion to quash.
In
explaining its decision, the trial court referred to the statements in
Husband’s declaration that someone dropped off documents addressed to him at
his work and that Husband believed that this was not proper service according
to the Hague Service Convention.
statements confirmed that Husband knew of the papers. The court stated: “I’m satisfied that this service was done in
a way by mail that does meet the mandates—which are vague from Japan. But it does meet the mandates that he knows
about it and circumstances are such that notice has been conveyed. [¶] So
for that reason the court denies the motion to quash the service in this case.â€
Earlier
in the hearing, the trial court had determined that the Hague Service
Convention was controlling; Article 10(a) of the Convention authorized service
by “postal channelsâ€; and service by mail was valid, in that Japan had
submitted a comment to the Convention regarding service through postal channels
but had not objected to it. The court
said that Japan’s comment “talks about how Japan basically says it’s okay. However, we want to be sure our citizens
truly know what’s going on. [¶] And I’m satisfied from the evidence [Husband]
knew what was going on.â€
name="_ftnref2" title="">[2] The court read Japan’s
comment that service by postal channels would not be “valid service in Japan in
circumstances where the rights of the addressee were not respected.†The court said, “My interpretation is rights
means that you really know you’re being sued†and thus “[i]t is important in
this analysis if the method used did convey notice or if it did not.â€
Husband’s
attorney argued that there was no evidence that the service papers were
addressed to Husband’s home address or about where the mailing actually went,
and there was no signed receipt by Husband to show he actually received the
mailing. The court said, “Doesn’t
matter. . . . There’s
never been a factual dispute here.
[Husband] never denied in his declaration he ever received it. So they don’t have to prove that he received
it under the Hague cases, the Lemme[
mail.†The court observed that Husband
had not claimed that he never received the documents.
Husband
filed a motion for reconsideration. At
the hearing on the motion in June 2011, Kawata testified that he obtained
documents to be served from Takahashi, who worked for Wife’s attorney. He stated that Takahashi told him “that the
documents to be served in connection with this, they have to be signed by the
other party.†Kawata testified that he
gave the documents to Ichimaru, his business associate, to serve them, and that
Ichimaru was not a government employee.
The trial court denied the motion for reconsideration in March 2012.
Husband
promptly filed the instant petition for writ of mandate pursuant to Code of
Civil Procedure section 418.10, subdivision (c).
Husband
contends the trial court improperly denied his motion to quash service of
summons on the basis of the court’s finding that Husband had actual notice of
the dissolution proceedings. The question
before the trial court and now before us is whether Wife’s attempted service of
process
title="">[4] on Husband was valid either (1) by substituted service—personal
delivery to Husband, a Japanese citizen, at his place of work in Japan,
followed by ordinary mail addressed to him at the same address; or (2) by
ordinary mail to Husband at an address in Japan suspected, but not known, to be
his residence, in the absence of any receipt or written record showing that
Husband actually received the service documents.
A.
Service
The
trial court’s stated reason for denying Husband’s motion to quash was that he
had actual notice of the dissolution action.
In Kott v. Superior
Court (1996) 45 Cal.App.4th 1126, we held that “[f]ailure 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.]â€
(Id. at p. 1136; see also
In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135 [defective service of process is not cured by
actual notice of the action]; Summers v. McClanahan (2006) 140 Cal.App.4th
403, 415.) “California is a jurisdiction where the
original service of process, which confers jurisdiction, must conform to
statutory requirements or all that follows is void. [Citations.] . . . [¶] . . . [¶] . . . The fact that the person
served ‘got the word’ is irrelevant.†(Honda Motor Co. v.
Superior Court, supra, 10
Cal.App.4th at pp. 1048-1049 [holding that service in Japan upon a
Japanese corporation by certified mail was not valid under California law or
the Hague Service Convention, even though evidence showed the corporation had
actual knowledge and the service documents bore the corporation’s receipt
stamp]; see § 410.50, subd. (a).)
B. Determination
of the Validity of Service on Husband in Japan
Arguments
presented by the parties suggest that assessment of the validity of service on
Husband in Japan involves a series of issues, including whether: (1) the Hague
Service Convention applies and preempts California law; (2) the Hague Service
Convention authorizes mail for service of process requiring transmittal of
service documents to Japan; (3) ordinary mail (rather than, e.g., certified,
registered or other return receipt requested method of mailing) to Japan is
sufficient to constitute valid service under the Convention; and (4) ordinary
mail to Japan constitutes valid service under California law. We emphasize that our analysis will be
limited to whether the service is sufficient for the trial court to assert
jurisdiction over Husband, provided that other jurisdictional requirements are
met. We also note that valid service for
the purposes of a California court will not necessarily constitute valid
service under Japanese law required for a Japanese court to recognize and
enforce the California court’s judgment in Japan.
Applicability of the Hague Service Convention
Service
of process abroad is addressed in section 413.10,
subdivision (c). The statute
provides that, when the person is to be served outside the United States, a
summons must be served as provided by the Code of Civil Procedure, as directed
by the trial court, “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).â€
The Hague Service Convention is a
multilateral treaty finalized in 1965 by the Tenth Session of the Hague
Conference of Private International Law to revise parts of the
previously-adopted Hague Conventions on Civil Procedure with respect to service
of process abroad. (Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. at p. 698; Kott
v. Superior Court, supra, 45
Cal.App.4th at p. 1133.) The formal name of the treaty is 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). (See In
re Vanessa Q., supra, 187
Cal.App.4th at p. 130.) The text of the
Hague Service Convention is presented in title 28, United States Code Annotated
following Federal Rules of Civil Procedure, rule 4. The United States was one of the original
signatories, and the Hague Service Convention went into force here in
1969. (Kott, supra, at
pp. 1134-1135.)
The Hague Service Convention “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.†(Volkswagenwerk
Aktiengesellschaft v. Schlunk, supra,
486 U.S. at p. 698.) The United States
Supreme Court held that “[b]y virtue of the Supremacy Clause, U. S. Const.,
Art. VI, the Convention pre-empts inconsistent methods of service
prescribed by state law in all cases to which it applies.†(Volkswagenwerk
Aktiengesellschaft, supra, at
p. 699.)
Article
1 of the Hague Service Convention addresses the scope of its
applicability: “‘The present Convention
shall apply in all cases, in civil or commercial matters, where there is
occasion to transmit a judicial or extrajudicial document for service
abroad.’ [Citation.]†(Volkswagenwerk
Aktiengesellschaft v. Schlunk, supra,
486 U.S. at p. 699.) Interpreting the
phrase “‘occasion to transmit,’†the United States Supreme Court stated: “If the internal law of the forum state
defines the applicable method of serving process as requiring the transmittal
of documents abroad, then the Hague Service Convention applies.†(Id.
at p. 700.)
All
the potentially applicable methods of service of process on Husband set forth
in California law require the transmittal of the service documents abroad. (§ 413.10,
subd. (c); Kott v. Superior Court,
of a copy of the summons and complaint.
(§ 415.10.) Substituted
service on an individual may be made by leaving a copy of the summons and
complaint with a competent person at the individual’s business, office,
dwelling, usual place of abode or usual mailing address. (§ 415.20.) A summons also can be sent by first class
mail with a return receipt requested, or coupled with an acknowledgment and
return envelope with postage prepaid.
(§§ 415.30, 415.40.)†(
p. 1135.)
service on Husband is governed by the Hague Service Convention and, to the
extent not inconsistent with the Convention, by the Code of Civil
Procedure. (§ 413.10,
subd. (c); Volkswagenwerk
Aktiengesellschaft v. Schlunk, supra, 486 U.S. at pp. 699, 700; see also Brockmeyer v. May (9th Cir. 2004) 383 F.3d 798, 803-804.)
The
main channel for service of process initiated by the Hague Service Convention
in Article 2 is through a Central Authority established by each signatory
country. The Central Authority receives
service documents from the requester and then serves them in accordance with
either the internal law of the receiving country or a compatible method
specified by the requester. (
p. 1134.) When service is
completed, the Central Authority provides the requester with a certificate of
service. (Ibid.) The Convention also recognizes other service
methods, but each country may object to use of one or more of them within its
boundaries. (Ibid.) The United States and Japan are both signatories to the Hague Service
Convention and, hence, have agreed that service in compliance with Central
Authority procedures is valid in their courts.
(Newport Components v. NEC Home
Electronics (C.D.Cal. 1987) 671 F.Supp. 1525, 1541.)
Wife
did not attempt service through Japan’s Central Authority. She chose other methods, both of which
included sending the service documents by mail addressed to Husband to two
addresses in Japan, one she believed was for his workplace and the other she
thought might be for his residence. They
were sent by ordinary mail, that is, a mailing method that did not require a
return receipt or other document showing that Husband actually received the
service documents.
2. Whether the Hague Convention Authorizes
Service by Mail
Wife
claims the mailings constituted one of the other methods of valid service
authorized by Article 10(a) of the Hague Service Convention. Article 10(a)
states: “Provided 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.â€
(
[as of Jan. 15, 2013].) Japan has
not objected to Article 10(a). The 2003
report of the Special Commission on the Practical Operation of the Hague Service
Convention states that Japan presented a statement at the commission’s meeting
that Japan has not issued a declaration “‘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 [this postal channels method] is always considered valid service in
Japan. [It] would not be deemed valid
service in Japan in circumstances where the rights of the addressee were not
respected.â€
title="">[7]
Husband and Wife
point out the split between federal and California courts on the issue of
whether Article 10(a) authorizes service of process by postal channels, in that
Article 10(a) uses the word “send,†not “serve.†Neither Husband nor Wife
cites any published opinion on the Article 10(a) issue from the United States
Supreme Court, the California Supreme Court or the Second Appellate District.
question in this court.
California
courts of appeal in some districts have concluded that Article 10(a) does not
allow service by mail in Japan, in that “send†does not mean “serve,†when applying the statutory
interpretation principle that words should be given their “common and ordinary
meaning.†(See Honda Motor Co. v. Superior Court, supra, 10 Cal.App.4th at pp. 1045-1047;
Suzuki Motor Co. v. Superior Court (1988) 200
Cal.App.3d 1476, 1480-1481, 1484.) By
contrast, in other districts, California appellate courts
have held that Article 10(a) allows service by mail, by applying the treaty
interpretation principles set forth in Volkswagenwerk
Aktiengesellschaft v. Schlunk, supra, 486
U.S. at pages 699-700. (See Denlinger v. Chinadotcom Corp., supra,
110 Cal.App.4th at pp. 1403-1405; Shoei
Kako Co. v. Superior Court (1973) 33 Cal.App.3d 808, 819-822.)
In
Ninth Circuit held that “the meaning of ‘send’ in Article 10(a) includes
‘serve.’ [Citation.]†(Id.
at p. 802.) The case at issue was from
the Central District of California. The
Ninth Circuit held that the Hague Service Convention allows service of process
by mail, but that the plaintiff’s attempted service by ordinary mail to a
defendant in England was not valid, in that the plaintiff failed to comply with
the specific procedures for service by mail which were set out in Federal Rules
of Civil Procedure, rule 4(f). (
We are not
bound by the opinions of California appellate courts in other districts. (Wolfe
v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 137.) We also are not bound by
decisions of lower federal courts, including the Ninth Circuit. (Venegas
v. County of Los Angeles (2004) 32 Cal.4th 820, 835; People v. Bradley (1969) 1 Cal.3d 80, 86.) To resolve this appeal, however, we need not
decide whether Article 10(a) of the Hague Service Convention permits service
by mail in Japan.
Invalidity of Wife’s Attempted Service by Ordinary Mail
Whether or not
Article 10(a) permits service by mail, Wife’s attempted service by ordinary
mail is invalid. California law governs
the method of mailing and proof of actual receipt by a defendant, even if Article
10(a) does authorize service by mail.
Article 10(a) is silent on the details regarding the methods of mailing
(e.g., ordinary, certified and/or registered mail) and proof of a defendant’s
actual receipt of the service documents.
The United States Supreme Court held that “the Convention pre-empts
prescribed by state law in all cases to which it applies.†(Volkswagenwerk
Aktiengesellschaft v. Schlunk, supra,
486 U.S. at p. 699, italics added.)
In Brockmeyer,
the Ninth Circuit explained the relationship of Article 10(a) and the
procedural law of the forum state as applied to service by mail: “Article 10(a) does not itself affirmatively authorize
international mail service. It merely
provides that the Convention ‘shall not interfere with’ the ‘freedom’ to use
postal channels if the ‘State of destination’ does not object to their
use. . . . [¶] . . . [W]e must look outside
the Hague Convention for affirmative authorization of the international mail
service that is merely not forbidden by Article 10(a). Any affirmative authorization of service by
international mail, and any requirements
as to how that service is to be accomplished, must come from the law of the
forum in which the suit is filed.†(
Wife’s service by ordinary mail must come from California law.
Under California law,
three sections of the Code of Civil Procedure involve service by mail. Section 415.20 authorizes substituted service
by personal delivery to a competent person at the defendant’s residence or
workplace, followed by sending the service documents by first class mail
addressed to defendant at the residence or workplace where the service
documents were delivered. Wife claims
she completed substituted service on Husband in Japan. We agree with the trial court’s determination
that nothing in Article 10(a) or any other provision of the Hague Service
Convention authorizes such substituted service.
Consequently, substituted service as authorized by section 415.20 does
not constitute valid service under the Hague Service Convention.
In California law,
service by mail is authorized also by section 415.30. The statue requires that the mailing include
a notice and acknowledgment of receipt to be signed by the defendant and a
return envelope, postage prepaid, addressed to the sender. Wife does not claim to have served Husband by
mail with notice and acknowledgment of receipt under section 415.30.
The only other statutory
provision authorizing service by mail is section 415.40. It provides that “[a] summons may be served
on a person outside this state . . . by sending a copy of the summons
and of the complaint to the person to be served by first-class mail, postage
prepaid, requiring a return receipt.â€
Wife submitted proofs of service for the mailing to Husband at the
address she believed was for his workplace and the mailing to him at the
address she thought might be for his residence.
She argues that they give rise to a rebuttable presumption that service
was valid. We note that “[t]he filing of
a proof of service creates a rebuttable presumption that the service was
proper. However, the presumption arises
only if the proof of service complies with the applicable statutory
requirements.†(Floveyor Internat., Ltd. v. Superior Court, supra, 59 Cal.App.4th at p. 795.)
Wife presented no
evidence that either of the mailings required a return receipt. The proofs of service presented by Wife do
not include any returned receipts confirming that Husband actually received the
service documents. We concluded in a
prior opinion that “[p]roof of service by mail on out-of-state defendants must
. . . strictly comply with the requirements of Code of Civil
Procedure section 417.20, subdivision (a).
[Citations.] This section
provides if service is made by mail on an out-of-state defendant ‘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.’ [Citation.]†(Bolkiah v. Superior Court
(1999) 74 Cal.App.4th 984, 1001, italics omitted.) Although the trial court did not expressly
refer to section 417.20, the court apparently relied on “other evidence†to
rule service on Husband was valid. The
court repeatedly referred to the fact that Husband never presented evidence
that he actually had not received the
service documents as evidence that Husband actually received them. Husband contends that the trial court
improperly shifted the burden of proof to him.
We agree.
When
a defendant claims, on the ground of improper service of process, that the
court lacks personal jurisdiction over him, the plaintiff has the burden of
proving the facts required to establish the validity of service on the
defendant. (Summers v. McClanahan, supra,
140 Cal.App.4th at p. 413; Dill v. Berquist Construction Co. (1994)
24 Cal.App.4th 1426, 1439-1440.) As Husband asserts, “a defendant is under no
duty to respond to a defectively served summons and may stand mute until a
plaintiff makes such a showing to the satisfaction of the court.†(Bolkiah
v. Superior Court, supra, 74
Cal.App.4th at p. 992.)
Husband also disputed
the accuracy of the address that was given on the proof of service of the
mailing ostensibly to his workplace.
Wife presented no evidence to confirm the address was correct. Husband pointed out that Wife presented no
evidence that the other address was his residence or place where he was staying
or receiving mail. Wife presented only
her belief that it was the address where the airline had delivered his
luggage. Her belief does not constitute
evidence that the service address was accurate.
Wife had the burden to prove Husband actually
received the service documents, but failed to do so. (Summers
v. McClanahan, supra, 140
Cal.App.4th at p. 413; Dill v. Berquist Construction Co.,
evidence†presented by Wife did not comply with section 417.20,
subdivision (a). No presumption of
validity of service arose from Wife’s proofs of service. (Floveyor
Internat., Ltd. v. Superior Court, supra,
59 Cal.App.4th at p. 795.)
For the foregoing
reasons, we conclude that Wife’s attempted service by ordinary mail did not
constitute valid service of process under California law. As a result the attempted service does not
comply with the Hague Service Convention, regardless of whether Article 10(a)
of the Convention authorizes service of process by mail. Accordingly, the trial court’s order denying
Husband’s motion to quash must be vacated.
DISPOSITION
The petition
for writ of mandate is granted. The
trial court is directed to vacate its order denying Husband’s motion to quash
service of summons and issue an order granting the motion. Husband shall recover his costs of this
proceeding.
JACKSON,
J.
We concur:
WOODS, Acting P. J.
ZELON, J.
name="_ftn1" title="">[1] In
Husband’s declaration dated March 1, 2011, paragraph 11, he stated: “[Wife] informed me that she filed
dissolution of marriage in Family Court in California. However, as of this date, I have not been
properly served with any of her moving papers.
On February 24, 2011, someone dropped off some documents address[ed] to
me at the front desk at my work. I am
informed and believe that this was not proper service on a resident living in
Japan according to the provisions of [the] Hague Service Convention.â€
name="_ftn2" title="">[2] During
the first day of the hearing, the trial court said that it agreed with Husband’s
attorney that if service is “not done within the rules, knowledge that you’re
being sued is meaningless.â€
