Hellen Min vs. Modern Motors, Inc.

Motion to Quash Service of Summons

Cal. Super. - 4th Dist.November 14, 2016

L I M N E X U S LL P Pio S. Kim (Bar No. 156679) : ELECTRONICALLY FILED David D. Yang (Bar No. 263949) Superior Court of California, LiMNEXxus LLP County of Orange 1055 West Seventh Street, 28" Floor 03/24/2017 at 03:30:00 Pi Los Angeles, CA 90017 Clerk of the Superior Court Telephone: (213) 955-9500 By Davon ‘velasquez, Deputy Clerk Facsimile: (213) 955-9511 E-mail: Pio.Kim@LimNexus.com E-mail: David. Yang@LimNexus.com Attorneys for Specially Appearing Defendant HYUNG JICK LEE and Defendants MODERN MOTORS, INC. and WON DONG LEE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE HELLEN MIN, formerly known as Case No.: 30-2016-00886554-CU-OE-CJC HYENA MIN, an individual, [Case Assigned for all purposes to the Hon. Plaintiff, David Chaffee, Dept. C20] Vs. SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S NOTICE OF MOTION, AND MOTION TO QUASH SERVICE OF MODERN MOTORS, INC., a California SUMMONS AND FIRST AMENDED Corporation, WON DONG LEE, an COMPLAINT FOR DEFECTIVE SERVICE; individual; HYUNG JICK LEE, an individual, and DOES 1 TO 20, inclusive, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Defendants. [Filed Concurrently with: Declarations of Hyung Jick Lee, Haley Kim, and David D. Yang; (Proposed) Order] Date: April 21, 2017 Time: 9:30 a.m. Dept.: C20 [Hearing Reservation No.: 72558477] Complaint Filed: November 14, 2016 Trial Date: None Set -1- SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE LI MN EX US LL P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 97 28 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on April 21, 2017 at 9:30 a.m., or as soon thereafter as the matter may be heard in Department C20 of the above-entitled Court, located at 700 W. Civic Center Dr., Santa Ana, California 92701, Specially Appearing Defendant Hyung Jick Lee (“HJ Lee”) will and hereby does move this Court for an order quashing service of the Summons and First Amended Complaint on HJ Lee for defective service. HJ Lee does not submit to the jurisdiction of this Court, and makes a special appearance for the sole purpose of challenging this Court’s jurisdiction over him. This Motion is made pursuant to Code of Civil Procedure sections 410.10, 413.10, and 418.10, on the following grounds: ° Service of process on HJ Lee was defective and therefore, the Court does not have personal jurisdiction over HJ Lee; ° HJ Lee is a Korean citizen and is domiciled in Korea; o Service of process on HJ Lee must be completed in conformance with the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”) and Code of Civil Procedure section 413.10(c); . Plaintiff cannot establish that she served HJ Lee with the Summons and First Amended Complaint in conformance with the Hague Service Convention and Code of Civil Procedure section 413.10(c); ° Plaintiff cannot show that she served HJ Lee through Korea’s Central Authority or in any manner permitted under the Hague Service Convention; ° Plaintiff cannot show that HJ Lee was served with the requisite Korean translations of the Summons and the First Amended Complaint as required under the Hague Service Convention, ° Service of process pursuant to Code of Civil Procedure section 415.20 was and is improper (which is trumped by the Hague Service Convention in any event). De SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L I M N E X U S L L P This Motion is based upon this Notice and Motion, accompanying Memorandum of Points and Authorities, the accompanying declaration of HJ Lee, the all pleadings, papers, and records on file in this action, all documents and facts of which the Court may take judicial notice, and on such further argument and evidence as may be presented at the hearing on the motion. Dated: March 24, 2017 LiMNEXUS LLP /__/ " Pib §. Kim NE David D. Yang so Attorneys for Specially Appearing Defendant HYUNG JICK LEE and Defendants MODERN MOTORS, INC. and WON DONG LEE 3a SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L I M N E X U S L L P c w NN O N wn BA \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff Hellen Min (“Plaintiff”) has filed a meritless lawsuit against Defendants Modern Motors, Inc. (“MM”) and Won Dong Lee (“WD Lee”), and Specially Appearing Defendant Hyung Jick Lee (“HJ Lee”). Not content with suing her former employer [MM] and its President [WD Lee], Plaintiff has attempted to sue the father of WD Lee (HJ Lee). As detailed herein, Plaintiff has failed to properly serve HJ Lee with service of process’. Accordingly, this Court lacks personal jurisdiction over HJ Lee. HJ Lee is a Korean citizen who is and has resided in the Republic of Korea (“South Korea”) since early 2016. [Lee Decl., 192-4] Moreover, HJ Lee (1) has never maintained any residence in California, (2) does not have a usual place of business in California, (3) has never had a bank account in California, and (4) has never held any licenses issued by this State. [Lee Decl., 195-10] Accordingly, service of process on HJ Lee (a foreign party domiciled in South Korea) was and is required to be made in compliance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”). HJ Lee has not been served in compliance with the Hague Service Convention. Because Plaintiff did not serve HJ Lee through Korea's Central Authority or in any other manner permitted by the Hague Service Convention, and because Plaintiff did not serve with the required Korean translations of the process, Plaintiff cannot demonstrate that she has properly served process on HJ Lee in any authorized manner. Accordingly, this Court’s : Hereinafter, references to “service” or “serve” are intended to refer to service of process. “Service of process refers to a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. [Citations.]” See Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 700. “California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void. [Citations.] ... []] ... [{] . . . The fact that the person served ‘got the word’ is irrelevant.” (See Honda Motor Co. v. Superior Court (1992) 10 Cal. App. 4th 1043, 1048-49 [holding that service in Japan upon a Japanese corporation by certified mail was not valid under California law or the Hague Service Convention, even though evidence showed the corporation had actual knowledge and the service documents bore the corporation’s receipt stamp]. 4 SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE LI MN EX US LL P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lacks personal jurisdiction over HJ Lee. As such, HJ Lee respectfully requests that the Court grant this motion and quash service of the summons and the First Amended Complaint. IL PLAINTIFF HAS NOT PROPERLY SERVED HJ LEE WITH PROCESS For the Court to acquire personal jurisdiction over a defendant, the defendant must be properly served with the summons and complaint. See Dill v. Berquist Constr. Co. (1994) 24 Cal.App.4th 1426, 1439 & n.13. If service of process is challenged, the Plaintiff has the burden of proving proper service by competent and admissible evidence. See Id. at 1439-40 (“When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, infer alia, the facts requisite to an effective service.”). Even when the defendant actually received the summons and complaint, a motion to quash will lie if process was not served in a statutorily authorized manner. See, e.g, Schering Corp. v. Super. Ct. (1975) 52 Cal. App. 3d 737, 741 (1975). A. Plaintiff Has Failed to Serve HJ Lee Through the Hague Service Convention Which Is The Only Authorized Manner to Serve Process on HJ Lee - A South Korean National Plaintiff has failed to serve HJ Lee in a statutorily authorized manner. Although required to do so under an international treaty, Plaintiff failed to serve HJ Lee in compliance with the Hague Service Convention? [20 U.S.T. 361-367, T.1.A.S. 6638] and Code of Civil Procedure section 413.10(c). California law expressly requires that service of foreign persons residing in signatory countries (such as South Korea) must comply with the Hague Service Convention.> Service of 2 The full text of the Hague Service Convention is attached as Exhibit 3 to the Declaration of David D. Yang. 3 Article 1 of the Hague Service Convention addresses the scope of its applicability: ““The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” [Citation.]” (Volkswagen Aktiengelsellschaft v. Schlunk (1988) 486 U.S. 694,699.) Interpreting the phrase “‘occasion to SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L i M N E X U S L L P > W N Oo 0 9 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 23 23 24 25 26 27 28 process abroad is addressed in Code of Civil Procedure section 413.10, subdivision (c). It provides that when the person is to be served outside the United States, a summons must be served as provided by the Code of Civil Procedure, as directed by the trial court, “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).” (Emphasis added.)* As the statute clearly provides, the methods enumerated in Code of Civil Procedure § 413.10(c) are preempted by the Hague Service Convention when serving foreign nationals in signatory countries such as South Korea. See Kott v. Sup.Ct. (Beachport Entertainment Corp.) (1996) 45 Cal. App.4th 1126, 1136. The law is extraordinarily clear. California courts may not exercise jurisdiction in violation of an international treaty. Suzuki Motor Co. v. Super. Ct. (1988) 200 Cal. App. 3d 1476, 1484 (1988). “Failure to comply with the Convention renders the service void, even if the defendant has actual notice of the lawsuit.” Floveyor Int'l, Ltd. v. Super. Ct. (1997) 59 Cal. App. transmit,”” the United States Supreme Court stated: “If the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.” (Id. at p. 700.) % The Hague Service Convention is a multilateral treaty finalized in 1965 by the Tenth Session of the Hague Conference of Private International Law to revise parts of the previously-adopted Hague Conventions on Civil Procedure with respect to service of process abroad. (Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. at p. 698; Kott v. Superior Court (1996) 45 Cal. App. 4th 1126, 1133.) The formal name of the treaty is Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 3 61, T.1.A.S. No. 6638) [See Kim Decl., Exh. 3] (See In re Vanessa Q., (2010) 187 Cal. App.4th 128, 130.) The text of the Hague Service Convention is also presented in title 28, United States Code Annotated following Federal Rules of Civil Procedure, rule 4. The United States was one of the original signatories, and the Hague Service Convention went into force here in 1969. Kot, supra, at pp.1134-35. South Korea became a signatory of the Hague Service Convention in 1997. [See Yang. Decl., Exh 1] The Hague Service Convention “was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” (Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. at p. 698.) The United States Supreme Court held that “[b]y virtue of the Supremacy Clause, U. S. Const., Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies.” (Volkswagenwerk Aktiengesellschaft, supra, at p. 699) Be SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L I M N E X U S LL P x 3 \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4th 789, 794; accord Kott v. Super. Ct. (1996) 45 Cal. App. 4th 1126, 1136 (“Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law. This is true even in cases where the defendant had actual notice of the lawsuit.”) (internal citation omitted); See also Honda Motor Co. v. Super. Cl. (1992) 10 Cal. App. 4th 1043, 1049. Here, the United States and South Korea (Republic of Korea) are signatories to the Hague Service Convention.” [Yang Decl., 12, Exh. 1.] HJ Lee is a South Korean citizen who resides in South Korea and has been domiciled in South Korea since early 2016. [HJ Lee Decl., 12-4.] HJ Lee has never owned or leased any real property in California, and has never maintained a residence in California. [HJ Lee Decl., 5, 8-9.] In addition, HJ Lee has never held or maintained any licenses issued by the State of California, and has never had any bank accounts in California. [Lee Decl., §96, 10]. Until early 2016, HJ Lee’s usual place of business was in Dalian, China, and since then, he has not maintained a place of business. [HJ Lee Decl, 113]. Currently, HJ Lee is seeking to reestablish a place of business in South Korea. [HJ Lee Decl., 913]. The purported substitute service address of 18200 Von Karman Ave., Ste. 710, Irvine, California 92612 is not HJ Lee’s usual place of business. [HJ Lee Decl., 12]. Accordingly, Plaintiff was required to serve HJ Lee (a foreign party domiciled in a signatory country to the Hague Service Convention) pursuant to the provisions of the Hague Service Convention. Floveyor Int'l, Ltd. v. Super. Ct. (1997) 59 Cal. App. 4th 789, 794. “The Hague Convention provides specific procedures to accomplish service of process,” primarily service through a central authority in each country. [Yang Decl., 94-8] See also Honda Motor, 10 Cal. App. 4th at 1045. “Each signatory nation may ratify, or object to, each of the articles of the Treaty.” Id. (citing Hague Service Convention, art. 21). For example, South Korea has specifically objected to service of “judicial documents, by postal channels, directly to persons abroad.” [Yang Decl. 3, Exh. 2] In addition, service by mail is not permitted by the 5 The Hague Service Convention has been signed by more than 75 countries including the U.S. and the Republic of Korea (South Korea). 2 SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L I M N E X U S LL P OO 0 NN A 10 11 12 13 14 15 16 17 18 19 20 21 92 23 24 25 26 27 28 internal laws of South Korea. [Kim Decl., §2.] See Republic of Korea, Civil Procedure Act, art. 174, 175, and 178; See also e.g., Dr. Ing. H.C., F. Porsche A.G. v. Super. Ct., 123 Cal. App. 3d 755, 762 (1981) (because West Germany objected to service by mail, attempts to serve German corporation in this manner were void); see also Honda Motor, 10 Cal. App. 4th at 1048-49 (Japan does not permit service of summons by mail, so attempted jurisdiction by mail void). As the court in Honda Motor held, any argument that California statutes authorizing service by mail trumps the Hague Service Convention is “entirely without support; the preemptive effect of the Hague Convention as to service on foreign nationals is beyond dispute.” 10 Cal. App. 4th at 1049. Here, Plaintiff cannot show any purported service that complied with the Hague Service Convention. The Plaintiff will be unable to summon any such evidence because it did not happen. [HJ Lee Decl., 16] Illustratively, the proof of service filed in this action simply indicates that HJ Lee was served by substitute service at 18200 Von Karmon Ave., Ste 710, Irvine, CA 92612. [Yang Decl., 10, Exh. 6] No mention is even made about the Hague Service Convention in Plaintiff's proof of service. Even more egregious is that on February 15, 2017 (two days after service was attempted on HI Lee by substitute service), counsel for HJ Lee contacted counsel for Plaintiff and advised him that the attempted substitute service at 18200 Von Karmon Ave., Ste 710, Irvine, CA 92612 was defective because (1) HJ Lee was domiciled in South Korea and that service had to be effected through the Hague Service Convention, and (2) 18200 Von Karmon Ave., Ste 710, Irvine, CA 92612 was not HJ Lee’s usual place of business.® [Yang Decl., 19, Exh. 5] Accordingly, Plaintiffs defective service must be quashed. See Lebel v. Mai (2012) 210 Cal. App. 4th 1154, 1160 ("[P]laintiff was required to show that service of process on defendant comported with the Hague Convention regarding service on an individual in a foreign country, or a proper basis for why the Hague Convention did not apply.”) 6 In addition, counsel for HJ Lee demanded that Plaintiff's counsel provide the date on which Plaintiff contended that HJ Lee was served. [Yang Decl, 9] Instead of providing such information, Plaintiff filed her defective proof of service on March 1, 2017. Id. 8. SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L I M N E X U S L L P 0 NN O N Un BA \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Second, Plaintiff also cannot prove that she served a Korean translation of either the Summons or the First Amended Complaint, which independently renders any attempt service void and ineffective. The Hague Service Convention provides that "the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.” Korea's Central Authority, and Korean law, requires that foreign (non-Korean) judicial documents for service such as a complaint and summons be accompanied by translations into the Korean language. [Yang Decl., 17, 8, Exh. 4] See Honda Motor, 10 Cal. App. 4th at 1045 (quashing summons where summons and complaint mailed to Japan by certified mail, return receipt requested, and without Japanese translations). B. Even Assuming for The Sake of Argument that the Hague Service Convention Did Not Apply, Service Would Also Be Defective Because Plaintiff’s “Substitute Service” Did Not Comply with CCP Section 415.20 Here, even assuming arguendo that the Hague Service Convention does not apply (it unequivocally does), Plaintiff’s “substitute service” did not comply with Code of Civil Procedure Sections 415.20 because the attempted substitute service at 18200 Von Karman Ave., Ste. 710, Irvine, California 92612 is improper because it is not HJ Lee’s “usual place of business.”” [HJ Lee Decl., 11-15]. The purported service address of 18200 Von Karman Ave., Ste. 710, Irvine, California 92612 is the commercial business address of MM. [/d.] HJ Lee does not have a business office in California. [Id.] Accordingly, “substitute service” is also Code of Civil Procedure section 415.20 provides in pertinent part: “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.9. SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE L I M N E X U S L L P N O n B R A W N oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defective under Code of Civil Procedure section 415.20. See General Motors Corp. v. Super. Ct., 15 Cal. App. 3d 81, 86 (1971) (“‘[WThere the statute requires notice to be given a party of any action of a court in any proceeding, the notice so given must be precisely the one prescribed by the statute.’”). III. CONCLUSION Based on the foregoing, the Motion to Quash Service of Summons and First Amended Complaint should be granted. This Court lacks personal jurisdiction over HJ Lee because he was not served pursuant to the Hague Service Convention as required by law. Dated: March 24, 2017 LIMNEXUS / Pio/S, im \ David D. Yang - Attorneys for Defendants MODERN MOTORS, INC. and WON DONG LEE -10- SPECIALLY APPEARING DEFENDANT HYUNG JICK LEE’S MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT FOR DEFECTIVE SERVICE