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PLAINTIFF'S NOTICE OF MOTION AND MOTION TO DEEM DEFENDANT YANG SERVED PROCESS
(Code
Civ. Proc. §§417.20; 415.40)
(Article 10(a) Hague Service Convention)
Hearing Date: September 14, 2016
Hearing Time: 2:30 PM
Department: 303
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
INTRODUCTION
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.
ARGUMENT
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."[1] 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." (
Plaintiff's
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."
Judicial
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."[2] On the country specific page for Canada[3], 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.
Since
service by mail on a Canadian defendant was authorized by Article 10(a) of
CONCLUSION
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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