Case Name: Anthony K. Moroyan v. Aram Vardanyan, et al.

Case No.: 17CV307967

Motion to Quash Service of Plaintiff’s Summons and Complaint

On March 29, 2017, plaintiff Anthony K. Moroyan (“Plaintiff”) filed a complaint against defendant Aram Vardanyan (“Defendant”) asserting a cause of action for malicious prosecution.

On May 10, 2018, Defendant filed the motion now before the court, a motion to quash service of Plaintiff’s summons and complaint.

I. Defendant’s motion to quash service of Plaintiff’s summons and complaint is DENIED.

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶4:414, p. 4-69 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg).) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg, supra, 53 Cal.App.4th at p. 808.) “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.’” (Id. at p. 809.)

Appellant was under no duty to act upon a defectively served summons. The requirement of notice ‘is not satisfied by actual knowledge without notification conforming to the statutory requirements’ [citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.

(Kappel, supra, 200 Cal.App.3d at pp. 1466 – 1467.)

A “defendant’s first line of attack normally is a motion to quash service for lack of personal jurisdiction under Code of Civil Procedure section 418.10, subdivision (a)(1). The same motion is used to attack defects in the manner in which summons was issued or served.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶3:376, p. 3-108.) “Without valid service of summons, the court never acquires jurisdiction over defendant. Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant.” (Id. at ¶4:413, p. 4-69 citing Code Civ. Proc. §418.10, subd. (a)(1).) Code of Civil Procedure section 418.10, subdivision (a)(1) states, in pertinent part,

A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.” (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211.) “Although the defendant is the moving party, the burden of proof is on the plaintiff.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶3:384, p. 3-111 citing Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793 (Floveyor), et al.) “[T]he burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize).) “Where a motion to quash is made, the burden of proof is on the plaintiff to establish the facts of jurisdiction, by declarations, verified complaint or other evidence.” (2 Witkin, California Procedure (4th ed. 1996) Jurisdiction, §211, p. 775 – 776.)

On November 30, 2017, Plaintiff filed a proof of service of summons indicating the summons, complaint and other documents were served on Defendant, “By first-class mail, postage pre-paid, return receipt required, on October 31, 2017, to out of state resident Aram Vardanyan’s residence address pursuant to C.C.P. Section 415.40 .” In an accompanying attachment, Plaintiff identified Defendant’s residence address as, “44 Qeru Street, Yerevan, 0028, Republic of Armenia.”

“Defendants living in another country can be served with summons in the same way as persons living in other states. … However, international treaties may limit the manner of service on persons located in signatory countries. The rules for serving persons in foreign countries are expressly subject to the Hague Service Convention (20 U.S.T. 361 – 367).” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶¶4:315 – 4:316, pp. 4-54 to 4-55.) “Failure 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.]” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

Although Defendant alludes to the lack of personal jurisdiction, the only legal argument advanced by Defendant concerns the validity of service. Plaintiff acknowledges service on Defendant is subject to the Hague Service Convention procedures apply. Plaintiff contends service is proper pursuant to Article 10(a) which allows a party to “send judicial documents, by postal channels, directly to persons abroad.” However, Article 10 applies, “Provided the State of destination does not object.”

The Sixth District Court of Appeal, in Denlinger v. Chinadotcom Corp. (2003) 110 Cal.App.4th 1396, 1398 held that, where no objection is made by the abiding country, Article 10(a) of the Hague Convention does allow service of process by mail.

Armenia does not object to application of Article 10 of the Hague Service Convention. (See https://assets.hcch.net/docs/6365f76b-22b3-4bac-82ea-395bf75b2254.pdf.) Plaintiff’s service of the summons and complaint in this action is in compliance with both Article 10(a) of the Hague Service Convention and Code of Civil Procedure section 415.40.

Accordingly, Defendant’s motion to quash service of Plaintiff’s summons and complaint is DENIED.