Case Name: Accellion, Inc. v. Weber, et al.
Case No.: 18CV329018

On May 29, 2018, plaintiff Accellion, Inc. (“Plaintiff”) filed a complaint against defendants Brad Weber (“Weber”), Escalade IT Solutions aka Escalade IT (“Escalade”), 7278497 Canada Inc., and FitCloudConnect, Inc., asserting causes of action for breach of contract, alter ego, and fraud. FitCloudConnect, Inc. was dismissed on June 13, 2018. On August 30, 2018, Plaintiff filed a proof of service of the summons as to the remaining defendants. The proof of service states that James Proulx of County Process Service, Inc. at 31 E. Julian Street in San Jose, served Weber personally on June 25, 2018 at 7:05 p.m. The proof of service does not describe the person who he served in terms of height or weight. It states that the person he served is a male over 45, who is bald with glasses. The stated address where Weber was served is 120 Iber Rd., Sittsville, Ontario, Canada K2S 1E9.

On September 13, 2018, Weber filed the instant motion to quash service of the summons, asserting that he was never properly served. Weber’s supporting declaration indicates that he was, in fact, never personally served, but did find the summons in a white, unlabeled envelope while sorting through a stack of mail. Weber also asserts that he called counsel for Plaintiff and asked for more information regarding the name of the individual who the document was allegedly handed to, and whether the individual was a resident of the home, and was told that the document was handed to Weber’s wife. However, Weber is divorced and does not have a wife.

The Court agrees that Weber was not properly served. Code of Civil Procedure section 413.10 provides for the means of service. The proof of service that Plaintiff filed on August 30, 2018, indicates personal service on Weber. As the complaint alleges, and as the proof of service indicates, Weber resides in Ontario, Canada. Personal service is a proper means of service within the state and outside the state but within the United States. (See Code Civ. Proc. § 413.10, subds. (a) and (b).) However, “service through the Hague Service Convention provides the exclusive means of service on a Canadian national if there is occasion to transmit judicial or extrajudicial documents abroad.” (Kott v. Super. Ct.) (Beachport Entertainment Corp.) (1996) 45 Cal.App.4th 1126, 1135.) “Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law.” (Id at p.1136 (also stating that “[t]he only method of service under California law which does not require the transmission of documents abroad, and consequently does not implicate the Hague Service Convention, is service of summons by publication where the party’s address remains unknown during the publication period despite the exercise of reasonable diligence”).) Accordingly, it is clear that the purported service of summons on Weber is void.

In opposition, counsel for Plaintiff contends that Weber served him belatedly with the moving papers and thus seeks a continuance so that he “would have sufficient opportunity, upon his return after the holidays, to review the file, research the issues, consult with his client and prepare an appropriate Opposition that would address the legal issues as to why WEBER’s MOTION should be denied,” but acknowledges that he was served with “the exact same MOTION” on September 10, 2018. Here, there is no basis for a continuance and Plaintiff’s request for a continuance is DENIED.

As it is clear that Plaintiff’s service on defendant Weber is void, Weber’s motion to quash service of summons is GRANTED.

Additionally, as Plaintiff notes in its opposition, Plaintiff filed a request to enter default against Weber on August 30, 2018, and that the request remains pending. In light of the above ruling, the Court directs the Clerk of the Court to not enter default against defendant Weber as requested by Plaintiff on August 30, 2018. The Clerk is directed to strike the pending request for entry of default against Weber.

The Court will prepare the Order.