This March, we identified three pointers for business litigators who need to serve foreign defendants in Federal Court cases (available here if you missed it). Today, we identify three key considerations relevant to serving foreign defendants for California State Court practitioners. While alternative service options for foreign defendants are more limited in California State Court, basic familiarity with the scope and application of the Hague Convention can save you (and your clients) time and money.
First, CCP § 413.10(c) mandates compliance with the Hague Convention if the Hague Convention applies.
In California State Court, service on foreign defendants is governed by CCP § 413.10(c). At first blush, CCP § 413.10(c) appears to permit a variety of forms of service on foreign defendants. It begins by stating that service “[o]utside the United States” is permitted “as provided in this chapter”; “as directed by the court in which the action is pending”; or, so long as 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.” Critically, however, “[t]hese 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).” CCP § 413.10(c) (emphasis added). The California Supreme Court held earlier this month that, where the Hague Convention applies, “[f]ailure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law.” Rockefeller Tech. Investments (Asia) VII v. Changzhou SinoType Tech. Co., No. S249923, 2020 WL 1608906, at *5 (Cal. Apr. 2, 2020) (internal quotation omitted).
This stands in stark contrast to federal procedure, where practitioners can seek alternative forms of service pursuant to FRCP 4(f)(3) even if the Hague Convention applies. See, e.g., Microsoft Corp. v. Goldah.com Network Tech. Co., No. 17-CV-02896-LHK, 2017 WL 4536417, at *3 (N.D. Cal. Oct. 11, 2017). Although on its face CCP § 413.30 empowers California State Courts to direct service of summons “in a manner which is reasonably calculated to give actual notice” where “no provision is made” elsewhere in California statutes, CCP § 413.30 is of little help where the Hague Convention applies.
Second, the Hague Convention only applies where “there is occasion to transmit” a document “for service abroad.”
Because compliance with the Hague Convention is mandatory where the Convention applies, a basic understanding of the Convention’s scope is essential. In short, the Hague Convention applies so long as: (1) the foreign country at issue has ratified the treaty, and the treaty has entered in force; and (2) “there is occasion to transmit a judicial or extrajudicial document for service abroad.” Kott v. Sup. Ct., 45 Cal. App. 4th 1126, 1133 (quoting Hague Convention, Art. 1) (emphasis added). However, the Hague Convention does not apply “where the address of the person to be served with the document is not known.” Id. Accordingly, situations where California State Court practitioners may be able to validly serve foreign defendants without resorting to Hague Convention procedures include:
service “by publication where the party’s address remains unknown during the publication period despite the exercise of reasonable diligence.” Id. at 1136; and
if the defendant is a foreign corporation with a California subsidiary serving as the defendant’s “American face,” by serving the subsidiary in a manner authorized by statute. See, e.g., Yamaha Motor Co. v. Sup. Ct., 174 Cal. App. 4th 264, 271-74 (2009) (“California Law Allows Service On a Foreign Corporation By Serving Its Domestic Subsidiary”); CCP § 416.10 (governing service on corporations).
Third, even where the Hague Convention applies, you may be able to serve a foreign defendant by mail or e-mail.
Whenever the Hague Convention potentially applies, it is important to understand the provisions of the Convention that the foreign jurisdiction at issue has agreed (or objected) to, as well as the methods of service permitted by the internal laws of the foreign jurisdiction. For example, Article 10(a) of the Hague Convention has been interpreted to permit service by mail, so long as: (1) the foreign country has not formally objected to service by mail; and (2) the jurisdiction where the action is pending (California) “affirmatively authorize[s] service by international mail.” Inversiones Papaluchi S.A.S. v. Sup. Ct., 20 Cal. App. 5th 1055, 1067 (2018) (“Inversiones”). In addition, the Court in Inversiones recognized that e-mail service could satisfy the Hague Convention if permitted by the internal laws of the foreign jurisdiction. See id.
[1] The table available at the following link provides helpful information regarding the status of the Hague Convention in different countries. https://www.hcch.net/en/instruments/conventions/status-table/?cid=17.
For more information regarding litigation strategy involving international parties or other complex disputes, please contact one of Alto Litigation’s experienced litigation partners: Bahram Seyedin-Noor, Bryan Ketroser, Ellen London.
***
Disclaimer: Materials on this website are for informational purposes only and do not constitute legal advice. Transmission of materials and information on this website is not intended to create, and their receipt does not constitute, an attorney-client relationship. Although you may send us email or call us, we cannot represent you until we have determined that doing so will not create a conflict of interests. Accordingly, if you choose to communicate with us in connection with a matter in which we do not already represent you, you should not send us confidential or sensitive information, because such communication will not be treated as privileged or confidential. We can only serve as your attorney if both you and we agree, in writing, that we will do so.
The materials on this website are not intended to constitute advertising or solicitation. However, portions of this website may be considered attorney advertising in some states.
Unless otherwise specified, the attorneys listed on this website are admitted to practice in the State of California.