210 Cal. App. 4th 1154
Cal. Ct. App.2012Background
- Plaintiff-Lebel and defendant Mai entered a February 2010 residential lease for a Santa Monica condo.
- Plaintiff filed an operative amended complaint in October 2011 seeking constructive eviction and fraud.
- Plaintiff attempted service on Mai in Granada Hills, CA, with substituted service on Mai via her co-occupant.
- Mai claimed he resided in London, England, and did not maintain a US residence; Mai’s mother disputed Mai resided there.
- Plaintiff argued Hague Convention did not apply due to unknown English address; Mai moved to quash service; trial court granted.
- Trial court found no evidence Mai was plaintiff’s ostensible agent and that substituted service did not comply with the rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hague Convention applies to service abroad | Lebel contends Hague Convention not required due to unknown English address. | Mai contends Hague Convention applies because he resided in England and address known or discoverable. | Hague Convention applies; service not valid absent compliance. |
| Whether substituted service on Mai’s mother was valid | Mai was unduly served as ostensible agent; service should be valid under domestic rules. | Mai argues no valid agent status; substitution not proper. | Substituted service on Mai’s mother was not valid. |
| Whether plaintiff exercised reasonable diligence to locate Mai's English address | Knew Mai resided in London but did not locate an English address; no reasonable diligence. | Mai argues diligence required; plaintiff failed to inquiry about England address. | No substantial compliance; no reasonable diligence shown. |
| Whether Mai's mother could be considered an ostensible agent for service of process | Ms. Mai provided as contact for emergencies; she could receive service. | There was no authorization for service on Mai via his mother; not an ostensible agent. | Ms. Mai was not shown to be an ostensible agent; service invalid. |
Key Cases Cited
- Dill v. Berquist Construction Co., 24 Cal.App.4th 1426 (Cal.App.4th 1994) (burden on plaintiff to prove proper service; rebuttable presumptions hinge on compliant proofs)
- Floveyor Internat., Ltd. v. Superior Court, 59 Cal.App.4th 789 (Cal.App.4th 1997) (Hague Convention applicability and service of process in foreign contexts)
- American Express Centurion Bank v. Zara, 199 Cal.App.4th 383 (Cal.App.4th 2011) (strict compliance with service rules; actual notice insufficient without colorable compliance)
- Kott v. Superior Court, 45 Cal.App.4th 1126 (Cal.App.4th 1996) (reasonable diligence required to locate foreign address; Hague Convention applicability intertwined)
- Summers v. McClanahan, 140 Cal.App.4th 403 (Cal.App.4th 2006) (agency for service; service on an agent requires authorized power to receive process)
- Schlunk v. Volkswagenwerk, 486 U.S. 694 (U.S. Supreme Court 1988) (Hague Convention preempts state-law service when transmission abroad is required)