OrderCal. Super. - 6th Dist.September 4, 2018\OOOVOUIAUJNfl N N N N N N N N N --- -‘ ~- ._. - ._. _. _. ._. ._. m \l O'\ U’I b DJ' N -' O \O 00 V O\ LI! b W N '-‘ O ELE‘E; Clerk Superior Coun o! Coumy oi Sauna E BY ~‘- Order. Issued asreuo’ on Submitted Matter SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA DlLU HE, Case No. 188C075465 Plaintiff, ORDER ON MOTION TO VACATE vs. KANG WU, et a]., Defendants. The motion to vacate thejudgment brought by defendant Kang Wu was regularly heard as noticed at 8:30 a.m. on February 4, 2019. The judgment in favor of plaintiff, entered on November 8, 2018, is challenged by defendant on the ground that he was not properly served with plaintiff’s Notice of Claim, stating “Lei Feng was improperly named as my agent.?’ Defendant’s motion also notes: “I appear specially to object tojurisdiction; I request telephone appearance at hrg.” Telephonic appearance was granted by the court, and defendant appeared by CourtCall. Plaintiff appeared personally at the hearing. Having taken the matter under submission after review of all filings and discussion with the parties, the court now finds and orders as follows. l ORDER ON MOTION TO VACATE the Court Lara ”UTY l _. OOWNOMAWN NNNNNNNNN---_--.---- OONQMAWN-OOOONQMAUJNfl I. Plaintiff He exercised reasonable diligence in attempting to ascertain foreign Defendant-landlord’s address The moving party has the burden of showing good cause for relief from a default or a defaultjudgment. Davis v. Thayer (I980) 1 13 Cal.App.3d 892, 904. ln California, all means other than personal delivery to the defendant are considered “substitute service.” CCP § 415. 10. Generally, personal service on the defendant must have been diligently attempted before substitute service may be used. Id. Small claims actions are an exception to that general rule and substitute service may be used without first attempting personal service on the defendant. CCP § l 16.340. Where the defendant is the resident of a foreign country and there is occasion to transmit ajudicial document for service abroad, applicetion ofThe Hague Convention is mandatory in all circumstances. Lebe/ v. Mai (20] 2) 210 Cal.App.4th 1154, l 162; Hague Convention on the Service Abroad ofJudiciaI and Extrajudicial Documents in Civil or Commercial Matters. However, where the laws of the forum state authorize a means of valid service on a domestic agent ofa foreign party, proper service does not require “transmittal of documents” abroad so the Hague Convention does not apply. Volkswagenwerk Aktiengesellschafl v. Schlunk, (1988) 486 U.S. 694, 705-707. Although a first attempt at personal service is typically not required in small claims actions, ifthe defendant resides in a foreign country, the Hague Convention requires a reasonably diligent first attempt at personal service. CCP § 1 16.340; See also, Lebel. 1n California, the first attempt requirement is met ifthe plaintiff exercises reasonable diligence in attempting to ascertain the defendant’s foreign mailing address to attempt personal service. Lebel at 1 161. If the whereabouts of the defendant cannot be ascertained, the Hague Convention does not apply and the defendant may be served by means of substitute service on a domestic agent. Id. There is n0 bright-Iine rule or articulable test For determining Whether a plaintiff exercised reasonable diligence in attempting to ascertain the whereabouts of the defendant. Lebel at 1162. Such a determination must be made on a case-by-case basis. Id. In Lebel v. Mai, for example, the court determined that the plaintiff-tenant failed to exercise reasonable diligence because they did not make cmy effort t0 inquire about the landlord’s residential, business, or other mailing address 2 ORDER ON MOTION TO VACATE \OOOVOMADJN- NNNNNNNNN---‘.-‘-‘.-’-t---- WQQMAWNHOOOOVQMALNNh-O in England, despite admittedly having the landlord’s personal e-mail address and overseas telephone number. The present case is a small claims action that resulted from a previous unlawful detainer case against Plaintiff He. Given that the current action involves a defendant that resides in another country, the Plaintiff was required to exercise reasonable diligence in attempting to ascertain Defendant Wu’s foreign mailing address to attempt personal service prior to using substitute service. This case is distinguishable from Lebel because Plaintiff made multiple attempts to inquire about the Defendant’s overseas mailing address. According to Plaintiff, he searched for the Defendant’s US cell phone number and attempted to contact the Defendant but the Defendant blocked the Plaintiff‘s phone number. It is unclear ifthe Defendant actually owned an overseas phone number, but in any event, the Plaintiff did not have the Defendant’s overseas phone number to request the Defendant’s physical address. However, the Plaintiff did have the Defendant’s e-mail, which he used t0 communicate with the Defendant prior t0 the filing of this action. The Plaintiff stated that the Defendant failed to reply to his e-mail in which he requested the itemized deduction list and receipts which was required by order of the court in the eviction case.' The Plaintiff did not state whether he requested the Defendant’s mailing address in any ofthese e-mails but the Plaintiff did request the Defendant’s physical address from Lei Feng and she refused to provide the Defendant’s overseas address. During the eviction case, Ms. Feng acted as the Defendant’s point of contact by helping him communicate with his attorney and Ms. Feng expressly stated that she was the Defendant- landlord’s “agent.“ Additionally, Ms. Feng failed to inform the Plaintiff that she was no longer the Defendant’s point of contact, despite the Plaintiff’s numerous texts and e-mails requesting the Defendant’s physical address, so it was reasonable for Plaintiff to assume that she was the point of contact less than three months later. Although it is unclear if the Plaintiff ever requested the Defendant’s overseas address in an e-mail to him, the Defendant sent the Plaintiff e-mails ‘Case No. I8CV3290|4 2 Stated in the “Notice to Pay Rent or Quit.” 3 ORDER ON MOTION TO VACATE OOOONQKJIADJNv-fi NNNNNNNNNfl.-______.__ OONONU‘AWN-OWOONOUIAWN- after the Plaintiff requested the Defendant’s overseas address from Ms. Feng, implying that the Defendant was in communication with Ms. Feng and had knowledge ofthe Plaintiff‘s requests. Also, the Defendant’s conduct in blocking the Plaintiff‘s phone number and Ms. Feng’s refusal to provide the Plaintiff with the Defendant’s address prevented the Plaintiff from discovering the Defendant’s address for service. The Plaintiff was therefore reasonably diligent in attempting to ascettain the Defendant’s foreign address. Despite the Plaintiff’s reasonable diligence, he was not able to ascertain the defendant’s whereabouts. Thus, the Hague Convention does not apply and substitute service on a domestic agent for the Defendant was permitted. II. Service upon Lei Feng as Defendant Wu’s domestic agent constituted valid service For substitute service to be reasonably calculated to give the defendant notice of the action and an opportunity to be heard, so as to comport with due process, “[s]ervice must be made upon a person whose ‘relationship to the person to be served makes it more likely than not that they will deliver process to the named party.’” Bein v. Brechlel-Jochim (1992) 6 Cal.App.4th 1387, 1393; CCP § 415.20. For example, substitute service is reasonably calculated where service was made upon a person who is authorized by the defendant to receive service of process. CCP §§ 116.340(a)(3); 416.90. Service upon a defendant’s agent may be prOper ifthere is evidence that the defendant either expressly or impliedly authorized an agent t0 accept service 0f process. Summers v. McClanahan (2006) 140 Ca1.App.4th 403; CCP § 4| 6.90. It should be noted that as long as the principal-agent relationship is “close and enduring enough to make it highly probable the defendant will receive actual notice” specific appointment ofan agent for service of process is not required. 1d. at 4 I 2 (citing Doherty & Co. v. Goodman (1935) 294 U.S. 623). Service upon an agent who possesses only ostensible authority to receive service of process will suffice to impose personal jurisdiction over the principal. Pasadena Medi-Cemer Associates v. Superior Court (1973) 9 Cal.3d 773, 781; CCP §§ 2315; 2317; 2330. There is a two-part test for determining the validity of service onto an agent in a small claims matter. First, the court must consider whether there is evidence that the defendant specifically authorized the agent to accept service 0f process. Summers at 414. Authorization of agent to receive service ofprocess could be inferred or implied. CCP § 416.90; Warner Bros. 4 ORDER ON MOTION TO VACATE NNNNNNMNN-‘--_.__._.._.._. mflomwa-OOOONONMADJN- O 0 00 \l O\ m_b La) N Records, Inc. v. Golden Wes! Music Sales (1974) 36 Ca1.App.3d 1012, 1019. 1f such evidence exists then service on the agent is valid and no further inquiry is needed. Ifsuch evidence does not exist then [he court must then consider whether the party served was an ostensible agent for service of process. A factor to consider is whether the agent had either expressly or impliedly represented to anyone that they had the authority to accept service of process on the defendant’s behalf. CCP §§ 1 16.340; 416.90; Summers at 414; Warner Bros. Records at 1019. The mere fact that a person is defendant's agent for other purposes is generally not enough t0 establish actual or implied authority to accept service 0F process--even if their relationship makes it highly probable that defendant will receive actual notice of the lawsuit. Ibid. For example, the Lebel coun held that the defendant-landlord's mother was n0! an ostensible agent for service despite the landlord's identification of the mother's address as the location for delivery of rent and the designation ofthe mother as the contact under the lease for “emergencies and maintenance needs.” (2012) 2 10 Ca1.App.4th 1 154. ln that case, the defendant was the main point of contact and the identification of the mother’s address was merely for the plaintiff‘s convenience. Id. The court stated that, at most, the mother was an agent for limited purposes. Id. In determining whether a person was an ostensible agent it is essential to evaluate whether the principal-agent relationship was a sufficiently close a connection so as to make it highly probable that defendant would receive actual notice. Summers at 414. The agent has the ostensible authority to accept service of process if there is evidence that the principal-defendant either intentionally or by lack ofordinary care, caused or allowed a third party to believe the agent possessed the authority to accept service of process. CCP § 23 1 7; see also, Summers v. McCIanahan (2006) 140 Cal.App.4th 403; Pasadena Medi-Cemer Associates v. Superior Court (1973) 9 Cal.3d 773, 781; Taylor v. Rosevil/e Toyota, Inc. (2006) 138 Cal.App.4th 994, 1005. A. Lei Feng was Defendant Wu’s agent Lei Feng is a registered real estate agent3 who was hired by Defendant Kang Wu to manage his rental property which was located at 3087 Zion Lane; San Jose, CA. 1n Defendant’s 3 License No. 01365121 5 ORDER ON MOTION TO VACATE _ Oomflmmbww NNNNNNNNN-a----_-.-.-__ OONOUIADJN-‘OOOONQUIAL'JNfl motion to vacatejudgment he included an e-mail in which Ms. Feng canceled the contract to manage Defendant’s rental home “[a]fier working with the tenants.” Ms. Feng stated that she had not told Plaintiff Dilu He about her decision to manage Defendant’s property. In 201 8, Ms. Feng assisted in Defendant’s eviction case against Plaintiff. A copy ofthe “Notice to Pay Rent or Quit” that was posted on the premises and the Verification were both included in Defendant’s complaint for the preceding eviction case. The “Notice to Pay Rent or Quit” expressly stated that Ms. Feng was Defendant’s “agent.” Additionally, Lei Feng signed, under penalty of perjury, a “Verification” that declaxed that she “personally manage[d] the premises” and that she had “personal knowledge of the facts alleged in [the] Complaint.” Despite the fact that Ms. Feng supposedly canceled the contract to manage Defendant’s property, Ms. Feng stated under penalty of perjury that she in fact managed said property. Other than Ms. Feng’s e-mail Defendant offered no evidence to suggest Ms. Feng ever stopped working as Defendant’s property manager and agent. At the very least, the evidence is sufficient to establish that Ms. Feng was Defendant’s agent for other purposes. B. Defendant Wu did not specifically appoint Lei Feng as an agent for service of process Neither document signed by Ms. Feng stated that Defendant was expressly authorizing Ms. Feng to accept service of process. Although a principal-landlord may imply that an agent is specifically authorized to accept service of process, Plaintiff did not offer any evidence t0 support that conclusion. Therefore Ms. Feng appears to not have been specifically authorized to accept service of process. C. Lei Feng possessed the ostensible authority to receive service ofprocess on behalf of Defendant Wu As Defendant’s property manager and real estate agent, Ms. Feng stood in a fiduciary relationship with the Defendant and therefore owed “the same obligation of undivided service and loyalty” owed by trustees to their beneficiaries. In Re Niles (9th Cir. 1997) 106 F.3d 1456, 1459 (citing Batson v. Streh/ow (1 968) 68 Ca|.2d 662, 674). Considering the high degree ofduty that accompanies such a “close an enduring” relationship, specific appointment ofan agent for service of process in the present case is not required. Summers at 4 I 2. The fact that a person is 6 ORDER ON MOTION TO VACATE OOOOVONMAL’JNH NNNNNNNNN---_._._.-._._.-‘ WNQMAwN-OOOONONU‘IAWN- the Defendant's agent for other purposes, without more, is not enough to establish that a person is an ostensible agent who is authorized to accept service of process. The facts 0f this case are distinguishable from that of Lebel because the identification 0f Ms. Feng 0n the “Notice to Pay Rent or Quit” was not for mere convenience, nor does Ms. Feng’s constant involvement as the Defendant’s point of contact and property manager suggest that Ms. Feng’s agency was limited in any way. Prior to the eviction trial, Ms. Feng helped Defendant He communicate with his attorney and the “Notice to Pay Rent or Quit” designated Ms. Feng as agent to receive the overdue rent. Although Ms. Feng sent a letter to the court which stated that she was not acting as Defendant’s agent, that letter was rejected by the court because she did not send a copy to the Plaintiff. Therefore, Ms. Feng failed to correct Plaintiff‘s beliefthat Ms. Feng was Defendant’s agent for service ofprocess. Additionally, the property owner is required to disclose, either in the lease, by written notice to the tenant, or by posting the notice in a conspicuous location on the premises, whether the property owner or an agent is designated to receive service of process. Cal. Civ. Code §§ 1961; 1962(a)(1)(B). [t is unclear ifthe lease in fact made such a disclosure since neither party filed a copy ofthe lease with the court for review. However, given the English language deficiencies of the Plaintiff and the fact that the “Notice to Pay Rent or Quit” was posted on the premises, the Plaintiffmay have misconstrued this to mean that Ms. Feng was being designated as an agent for all purposes, including for service of process. At no point in time did Defendant state that Ms. Feng’s designation as agent was limited to receiving overdue rent in the eviction case. Defendant lacked ordinary care in failing to expressly designate an agent for service of process when Defendant knew he would need to provide Plaintiff with an itemized deposit statement within three weeks of the judgment in the eviction case. As a result of Defendant’s lack ofordinary care, he allowed Plaintiff to believe that Ms. Feng was authorized to receive service of process. Plaintiff wasjustified in this reliance, and the facts establish that Lei Feng was, at a minimum, defendant’s ostensible agent, on whom substitute service could properly be effected. 7 ORDER ON MOTION TO VACATE ._. OOOOVQLIIAL'JN NNNNNNNNN--_-‘_.-a--_‘_ OOVGMADJN-OOOONO\LIIAWN- Conclusion Defendant did not meet his burden in establishing that Ms. Feng was not his ostensible agent for service of process. Service on Ms. Feng was therefore valid and Defendant’s motion t0 vacate is DENIED. Service was proper, as authorized by §1 16.340. The Court also briefly addresses the issue of personal jurisdiction, which appears to be raised on the face ofdefendant’s motion, but was not briefed by either party. The Court finds that defendant’s contacts with the State of California and the County of Santa Clara are clearly established by the facts ofthis case and ofthe underlying unlawful detainer action. As it is undisputed that defendant owns the real property at issue and that he was plaintiff‘s landlord; as the court finds it is established that as the owner/landlord he conveyed at least ostensible agency on Lei Feng; and further that he was an active participant in the unlawful detainer action, including personally appearing in court on July 20, 2018 and signing the Stipulation for Entry of Judgment - the court finds defendant purposefully availed himselfofthe benefits ofdoing business in California, and plaintist claim clearly arises out of defendant’s contacts with California. T0 the extent defendant’s motion may also be considered a motion to quash service for lack of personal jurisdiction, such motion is also DENIED. ”vklox \ 8 ORDER ON MOTION TO VACATE