Memorandum Points and Authorities

Cal. Super. - 6th Dist.June 18, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 1 OF 7 Michael Indrajana, Esq. (SBN 258329) INDRAJANA LAW GROUP, A Professional Law Corporation. 1650 South Amphlett Blvd. Suite 220 San Mateo, CA 94402 Phone: (650) 597-0928 Email: michael@indrajana.com Attorneys Specially Appearing for Deepika Nagasamy, Lavanya Dhanabalan, and Nagasamy Dhanabalan IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JAGADESAN KUMARESAN Plaintiff, v. HERITAGE BIRIYANI, INC. DBA THALAPPAKATTI RESTAURANT; JAYAPRAKASH FRANCIS; SRIWATH RAJASEKAR; SOMASUNDARAM KULANTHAIVEL; DEEPIKA NAGASAMY; LAVANYA DHANABALAN; NAGASAMY DHANABALAN; BALASUBRAMANI KRISHNARAJ; and DOES 1 Through 100, inclusive Defendants. Case No.: 18CV330287 MEMORANDUM POINTS AND AUTHORITIES FOR MOTION TO QUASH SUMMONS HEARING DATE: OCT. 25TH, 2018 TIME: 9:00 AM DEPT: 13 HON. JUDGE STOELKER COMPLAINT FILED: JUNE 27, 2018 TRIAL DATE: NOT SET MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS (Code Civ. Proc. § 418.10(a)(1)-Defective Service of Summons) I. INTRODUCTION Plaintiff filed the complaint in this instant action against purported Defendants Deepika Nagasamy, Lavanya Dhanabalan, and Nagasamy Dhanabalan (the “Indian Defendants”) on June 27, 2018 alleging among other things, wage and hour claims and retaliation claims. Plaintiff filed a proof of service indicating that service was complete for said Indian Defendants on July 17th, Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/24/2018 1:15 PM Reviewed By: V. Taylor Case #18CV330287 Envelope: 1874596 18CV330287 Santa Clara - Civil V. Taylor 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 2 OF 7 2018. Indrajana Decl. at ¶ 4, Exhibit 01. According to the Proof of Service documents, Plaintiff supposedly achieved service by substituted service when the process server dropped documents at the Thalappakatti Restaurant located at 252 Ranch Drive, Milpitas CA 95035. Id.1 However, all three Defendants are Indian Nationals who live and reside in India, such that service of process to all three are governed by the Hague Service Convention. Defendant Nagasamy Dhanabalan is a citizen of India, currently residing in Chennai, Tamil Nadu, India. See the Decl. of Nagasamy Dhanabalan, ¶ 3. Mr. Dhanabalan is a managing director of Thalappakatti Restaurant in India. Id. at ¶ 4. Defendant Deepika Nagasamy is a citizen of India, currently residing in Chennai, Tamil Nadu, India. See Decl. of Deepika Nagasamy, ¶ 3. Ms. Nagasamy is a marketing director of Thalappakatti Restaurant in India. Id. at ¶ 4. Defendant Lavanya Dhanabalan is a citizen of India, currently residing in Erode, Tamil Nadu, India. See Decl. of Lavanya Dhanabalan, ¶ 3. Ms. Dhanabalan is a director of Thalappakatti Restaurant in India. Id. at ¶ 4. Plaintiff effected defective service of process on Defendants by failing to comply with the requirements of the Hague Convention for Defendants. Defendants therefore now file this motion in order to seek relief from the Court from Plaintiff’s defective service of process.2 Defendants are filing a concurrent Motion to Quash before this Court in a separate but related matter in Joseph v. Heritage Biriyani, Inc., et al., Case No. 18CV322953, in which the same identical issue involving defective service of process is present in that matter as well. Indrajana Decl. at ¶ 7. 1 As a matter of fact, the service documents were incomplete as they did not include (1) Exhibit A to the Complaint, (2) the required ADR Package and notice of CMC pursuant to CRC 3.221(c). Indrajana Decl. at ¶ 4, Exhibit 01. 2 It should be noted that a similar motion is currently being filed by Defendants before this Court in Joseph v. Heritage Biriyani, Inc. et al., Case No. 18CV322953. Plaintiff in the other matter is represented by the same counsel currently representing Plaintiff (Mr. Mahesh Bajoria). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 3 OF 7 II. SERVICE OF SUMMONS MUST BE QUASHED WHERE SERVICE IS DEFECTIVE. This motion to quash is based upon several statutory provisions: Code Civ. Proc. § 418.10(a)(1), in part provides: “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. . . (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Also, Code Civ. Proc. § 413.10 provides: Except as otherwise provided by statute, a summons shall be served on a person: (a) Within this state, as provided in this chapter. (b) Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served. (c) Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that 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. These 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). The Hague Service Convention “is a multinational treaty formed in 1965 to establish an ‘appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.’ (Hague Convention preamble, 20 U.S.T. 361, 362, T.I.A.S. No. 6638, reprinted in 28 U.S.C.A. Fed. R. Civ. P. 4, note, at 130 (West Supp. 1989).) The Hague Convention provides specific procedures to accomplish service of process. Authorized modes of service are service through a central authority in each country; service through diplomatic channels; and service by any method permitted by the internal law of the country where the service is made. (See [Hague Service Convention], arts. 2-6, 8, 19; see also discussion in Bankston v. Toyota Motor Corp. (8th Cir. 1989) 889 F.2d 172, 173.) Each signatory nation may ratify, or object to, each of the articles of the [Hague Service Convention]. ([Hague Service Convention], art. 21.)” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1045 (Honda Motor Co.).) The foreign and public policy importance of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 4 OF 7 compliance with the Hague Service Convention is obvious as the procedure affords appropriate deference to governments and citizens of other nations. Both the United States and India are signatories (sometimes referred to as “contracting States”) to the Hague Service Convention. (Hague Conference on Private International Law, 14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Apr. 11, 2018) Status Table [as of August 20th, 2018].) In the United States, state law generally governs service of process in state court litigation. However, by virtue of the Supremacy Clause, United States Constitution, Article VI, the Convention preempts inconsistent methods of service prescribed by state law in all cases to which the Convention applies. (See Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699 [108 S. Ct. 2104, 100 L.Ed.2d 722] (Volkswagenwerk).) Thus, although a summons issued by a California state court generally must be served pursuant to the Code of Civil Procedure (§§ 413.10 et seq.), service in the present case is governed by the Hague Service Convention, not the Code of Civil Procedure. (See Honda Motor Co., supra, 10 Cal.App.4th at p. 1049 [“the preemptive effect of the Hague Convention as to service on foreign nationals is beyond dispute”].) It is anticipated that Plaintiff may attempt to improperly rely on a narrow exception to the requirements of the Hague Service Convention. Article 1 of the Hague Service Convention states that the Convention does not apply if the address of the person to be served is not known. However, this provision has been construed to mean the Hague Service Convention does not apply when defendant’s whereabouts cannot be ascertained despite reasonable diligence. Kott v. Sup. Ct. (Beachport Entertainment Corp.) (1996) 45 CA4th at 1126, 1139 (emphasis added). In Kott, a Canadian defendant’s address was “unknown” only because plaintiff “chose to ignore obvious avenues for obtaining the information” and instead only attempted to locate California address for him. Kott at 1139. A cursory internet search of the Indian Defendants’ names reveals the Indian Defendants’ information in India. Indrajana Decl. at ¶ 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 5 OF 7 In this case, Defendants Deepika Nagasamy, Lavanya Dhanabalan, and Nagasamy Dhanabalan are citizens of India with principal residence in India. Thus, Plaintiff must comply and follow the requirements of the Hague Service Convention in order to properly serve Defendants who are Indian Nationals residing in India. Plaintiff’s service attempt under California law fails to comply with the requirements of the Hague Service Convention, and therefore Plaintiff has not effectuated service on the Defendants as required by law.3 As a result of Plaintiff’s defective service, this Court has not retained jurisdiction over the Defendants. Failure to comply with the Hague Convention procedures voids the service, even where the defendant had actual notice of the suit. Kott v. Sup. Ct. (Beachport Entertainment Corp.) (1996) 45 CA4th at 1126, 1136 (emphasis added). Courts agree that “the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.” Engebretson & Co. v. Harrison, 125 Cal. App. 3d 436, 443, 178 Cal. Rptr. 77 (4th Dist. 1981), citing Shering Corp. v. Superior Court, 52 Cal. App. 3d 737, 741, 125 Cal. Rptr. 337 (2d Dist. 1975). Compliance with the statutory procedures for service of process “is essential to establish personal jurisdiction.” (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152 (Renoir).) In Honda Motor Co., supra, 10 Cal.App.4th 1043, the court held that service on a Japanese corporation that did not comply with the Hague Service Convention had to be quashed even though the Japanese defendant had actually received the summons and complaint. The court in Honda explained: “[Plaintiff’s] arguments share a common fallacy; they assume that in California, actual notice of the documents or receipt of them will cure a defective 3 Assuming Plaintiff can somehow and successfully avoid the Hague Convention requirements, Plaintiff’s service is also defective as a matter of California law. First, Plaintiff failed to serve the complete summons when he failed to attach the Exhibit A to the Complaint. See Indrajana Decl. at ¶ 5, Exhibit 02. This renders the complaint incomplete. Second, Plaintiff failed to serve the ADR information package along with the summons pursuant to CRC 3.221(c), which states in part, “The court will make an ‘ADR information package’ available to the plaintiff when suit is filed, which plaintiff must serve on each defendant together with the summons and complaint.” In Plaintiff’s Proof of Service Document, Plaintiff’s process server clearly mentioned that only the complaint, summons, and civil cover sheet were served on Defendants. Indrajana Decl. at ¶ 4, Exhibit 01. This is but one more evidence of Plaintiff’s Counsel’s flagrant disregard of the procedural requirements of service of process requirements. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 6 OF 7 service. That may be true in some jurisdictions, but California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void. Honda at 1048. Plaintiff argues that it is ridiculous, wasteful and time consuming to reverse the trial court just to force plaintiff to go through the motions of a service under the convention, when there is no question but that Honda has notice of the action, its attorneys stand ready to defend it, and no practical aim can be accomplished by quashing the service. However, plaintiff cites no authority permitting a California court to authorize an action to go forward upon an invalid service of process. The fact that the person served ‘got the word’ is irrelevant. Id. ‘Mere knowledge of the action is not a substitute for service, nor does it raise any estoppel to contest the validity of service.’ Id. ‘[O]ur adherence to the law is required if we are ever to instill respect for it.’ Id. The Abrams court[4] felt it could not rewrite the work of the California Legislature; how much less are we able to rewrite a federal treaty.” (Honda Motor, supra, 10 Cal.App.4th at pp. 1048-1049, italics added.) Just like in Honda, it is anticipated that Plaintiff will argue Defendants received actual notice of the suit when it served the other Defendants residing in the United States. Under California law, the fact that a Defendant has actual notice of the suit is irrelevant when Plaintiff has not affected service as required by law. Given Defendants were not served with the summons in the manner required by the Hague Convention, and that the Court has not retained jurisdiction over the Defendants as a result of the failed service, Defendants now move the Court to quash Plaintiff’s Service of Summons. In the alternative, service should be quashed given the defects outlined in Footnotes 1 and 3. III. DEFENDANTS’ TIME TO FILE A RESPONSIVE PLEADING IN THIS ACTION IS EXTENDED PURSUANT TO CODE CIV. PROC. § 418.10(b). Pursuant to Code Civ. Proc. § 418.10(b), “[t]he service and filing of the notice [of motion to quash] shall extend the defendant’s time to plead until 15 days after service upon him or her of 4 In re Abrams (1980) 108 Cal.App.3d 685, 695 [annulling contempt judgment against witness because witness subpoena had not been personally served as required by statute; “the process was not served in the manner required by law and defendant may not be criminally punished for failure to obey the subpoena.”].) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS CASE NO. 18CV330287 PAGE 7 OF 7 a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant’s time to plead for an additional period not exceeding 20 days.” Defendants herein have not filed a responsive pleading to Plaintiff’s complaint, and this motion does not constitute a general “appearance” in the case. (Code Civ. Proc. § 418.10(d).) IV. CONCLUSION For all the foregoing reasons and supporting facts and authorities, it is respectfully requested that the Court grant this motion and issue an order quashing service of summons on the Defendants pursuant to Code Civ. Proc. § 418.10(a)(1) because Plaintiff failed to comply with the requirements of the Hague Convention to serve Defendants located in India. DATED: _August, 24, 2018__ Respectfully submitted, INDRAJANA LAW GROUP, A PROFESSIONAL LAW CORPORATION MICHAEL INDRAJANA Attorney Specially Appearing for Defendants DEEPIKA NAGASAMY, LAVANYA DHANABALAN, and NAGASAMY DHANABALAN