Inversiones Papaluchi S.A.S. v. Superior Court ( 2018 )

Filed 2/14/18; pub. order 2/27/18 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
INVERSIONES PAPALUCHI B285092
S.A.S. et al.,
(Los Angeles County
Petitioners, Super Ct. No. BC514477)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
ROBINSON HELICOPTER
COMPANY, INC., et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of
mandate. David Sotelo, Judge. Petition granted.
Baum, Hedlund, Aristei & Goldman, Ronald L.M.
Goldman, A. Ilyas Akbari, for Petitioners.
No appearance for Respondent.
Perkins Coie, Ronald A. McIntire, Max L. Rothman,
Christopher Ledford, for Real Party in Interest Honeywell
International Inc.
Michaelis, Montanari & Johnson, Garry L. Montanari,
for Real Party in Interest Rolls-Royce Corporation.
Tim A. Goetz and Cathrine E. Tauscher, for Real Party
in Interest Robinson Helicopter Company, Inc.
__________________________
A helicopter crash in Colombia on July 12, 2011, killed
the pilot and passenger. The surviving heirs filed a wrongful
death action against Robinson Helicopter Company, Inc.,
Honeywell International, Inc., and Rolls-Royce Corporation.
Robinson Helicopter, Honeywell, and Rolls-Royce
(collectively, cross-complainants) subsequently filed nearly
identical cross-complaints against a Colombian entity and
Roes 1-25. Each cross-complainant later designated
petitioners Inversiones Papaluchi S.A.S. and Inversiones
Protech S.A.S. (collectively, petitioners) as Roe cross-
defendants.
Petitioners challenge the respondent court’s order
denying their motion to quash service of summons and
dismiss the cross-complaints. (Code Civ. Proc., §418.10,
2
subd. (c).)1 An alternative writ was issued directing the
respondent court to vacate its order, or to show cause before
this court why relief sought in the petition should not be
granted. The respondent court elected not to comply with
the alternative writ. Honeywell and Rolls-Royce filed a joint
return, Robinson Helicopter filed a joinder to the return, and
petitioners filed a reply.2
The issues before this court are whether: (1) Robinson
Helicopter timely attempted service of its cross-complaint on
petitioners within the three-year statutory period; and (2)
Honeywell and Rolls-Royce properly served petitioners in
Colombia by Federal Express and email. We conclude
Robinson Helicopter’s cross-complaint should have been
dismissed because service was attempted beyond the three-
year statutory period, and Robinson Helicopter offers no
valid exception to this rule. We further conclude that
Honeywell and Rolls-Royce failed to properly serve
petitioners pursuant to the Hague Service Convention.
Therefore, petitioners’ motion should have been granted and
the cross-complaints dismissed.
1All statutory references are to the Code of Civil
Procedure unless otherwise specified.
2 Honeywell and Rolls-Royce’s joint motion for judicial
notice filed on November 6, 2017, and their second joint
motion for judicial notice filed on December 5, 2017, as well
as petitioners’ second motion for judicial notice filed
November 20, 2017, are denied. (Evid. Code, §§ 452, 459.)
3
I. Robinson Helicopter
Petitioners contend the respondent court erred in not
dismissing Robinson Helicopter’s cross-complaint for failure
to complete service on petitioners within the statutory three-
year period. We agree.
A. Factual Background
On April 21, 2014, Robinson Helicopter filed its cross-
complaint for indemnification and declaratory relief against
a Colombian entity, Inversiones Agroindustriales El Paraiso
S.A.S. (IAP) and Roes 1-25.3 On July 18, 2016, cross-
complainants discovered that petitioners were formed from
the assets of IAP. On November 30, 2016, IAP served notice
on cross-complainants that its corporate charter had been
cancelled and “is no longer permitted to operate in any
capacity or events. Therefore, [IAP] will no longer be able to
defend itself in this matter.” On January 19, 2017, Robinson
Helicopter substituted petitioners for their respective Roes 1
and 2. On March 3, 2017, the respondent court granted
Robinson Helicopter’s ex parte application for an order
extending time to serve its cross-complaint to July 31, 2017.
On May 17, 2017, Robinson Helicopter filed proofs of service
of summons on both petitioners in the respondent court,
stating it emailed and shipped the summons, cross-
3 The other cross-defendants were dismissed.
4
complaint, and other documents by Federal Express and
email on May 12, 2017.
B. Mandatory Dismissal
A plaintiff must serve “a defendant within three years
after the action is commenced against the defendant.”
(§ 583.210, subd. (a).) “[A]n action is commenced at the time
the complaint is filed.” (Ibid.) Dismissal is mandatory
where a plaintiff fails to serve a defendant within the
statutory time limits. (§ 583.250, subd. (b).) The three-year
rule applies where the defendant seeking dismissal was
served as a Doe defendant named in the original complaint,
later amended to show his or her true name. (See Higgins v.
Superior Court (2017) 15 Cal.App.5th 973, 982; Lesko v.
Superior Court (1982) 127 Cal. App. 3d 476, 481–482.) In
short, a plaintiff has three years from the date of filing the
complaint to identify and serve a Doe defendant. (Higgins v.
Superior Court, supra, at p. 982.)
Here, Roes 1-25 were designated as cross-defendants in
Robinson Helicopter’s original cross-complaint filed on April
21, 2014. Petitioners were later designated as Roes 1 and 2
on January 19, 2017. Service of the summons and cross-
complaint on petitioners was due on April 21, 2017, three
years after the original cross-complaint was filed. Robinson
Helicopter did not attempt to serve petitioners until May 12,
2017, 21 days after the three-year service deadline.
5
Service requirements “are mandatory and are not
subject to extension, excuse, or exception except as expressly
provided by statute.” (§ 583.250, subd. (b).) The Legislature
has articulated four conditions that toll the time for service.
(§ 583.240.)4 The conditions “must be construed strictly
against the plaintiff.” (Shipley v. Sugita (1996) 50
Cal. App. 4th 320, 326). Although raised by petitioners in the
respondent court, Robinson Helicopter failed to meet its
burden of providing argument or establishing any facts
bringing the case within section 583.240. (See Perez v.
Smith (1993) 19 Cal. App. 4th 1595, 1597.)
Before the respondent court, Robinson Helicopter
argued that petitioners were barred from seeking dismissal
under the doctrine of equitable estoppel. (§ 583.140
[“Nothing in this chapter abrogates or otherwise affects the
principles of waiver and estoppel”]; Tresway Aero, Inc. v.
Superior Court (1971) 5 Cal. 3d 431, 437–439 [doctrine of
equitable estoppel is applicable to motions to dismiss for
failure to effectuate service within three years].) Under this
doctrine, “If a trial court finds statements or conduct by a
defendant which lulls the plaintiff into a false sense of
security resulting in inaction, and there is reasonable
reliance, estoppel must be available to prevent defendant
4 The Legislature has also carved out exceptions to
mandatory dismissal. (§ 583.220 [“the defendant enters into
a stipulation in writing or does another act that constitutes a
general appearance in the action”].) None of these
exclusions apply here.
6
from profiting from his deception.” (Tejada v. Blas (1987)
196 Cal. App. 3d 1335, 1341.) Robinson Helicopter contended
petitioners’ counsel originally said that he could and would
accept service on behalf of petitioners, therefore “lulling”
Robinson Helicopter “into a false sense of security.” That
assertion is belied by the record.5
It was Honeywell’s counsel who, on January 12, 2017,
reached out to petitioners’ counsel, informing him of the
filing of its Roe amendments (on January 11, 2017) to its
cross-complaint, and asking him to accept service on behalf
of petitioners. As previously stated, Robinson Helicopter did
not designate petitioners as Roes 1 and 2 until January 19,
2017. On January 23, 2017, Honeywell’s counsel sent a
follow-up email to petitioners’ counsel, who responded he
would follow up with his clients. On February 14, 2017,
petitioners’ counsel informed Honeywell that he would not
accept service on behalf of his clients.
There is no evidence that Robinson Helicopter’s counsel
ever communicated with petitioners’ counsel about service.
Petitioners’ counsel also never stated at any point that he
would accept service on petitioners’ behalf—rather he said
he would ask his clients. Within a month of the original
correspondence, petitioners’ counsel responded to Honeywell
that he would not accept service on petitioners’ behalf. At
5 Robinson Helicopter solely relies on a declaration of
Honeywell’s counsel (Ronald L. McIntire) filed in support of
Honeywell’s ex parte application for extension of time to
serve the cross-complaint on March 3, 2017.
7
this point, each cross-complainant had a little over two
months to serve petitioners before the three-year statutory
deadline. Honeywell was able to attempt service on
petitioners (albeit by unauthorized means, as discussed
below) within the statutory time period, on March 22, 2017.
Rolls-Royce similarly was able to attempt service on April
12, 2017. Robinson Helicopter had the same opportunity to
attempt timely service as the other cross-complainants, but
it failed to do so without sufficient excuse. Moreover,
Robinson Helicopter’s argument that petitioners should be
estopped from asserting untimely service due to petitioners’
counsel’s delay in refusing to accept service fails, because
Robinson Helicopter was at all times represented by counsel.
(See Abers v. Rohrs (2013) 217 Cal. App. 4th 1199, 1210
[“‘[T]he law “particularly” disfavors estoppels “where the
party attempting to raise estoppel is represented by an
attorney at law”’”].) In its brief before this court, Robinson
Helicopter fails to articulate any facts or argument in
support of equitable estoppel. We conclude the respondent
court was required to dismiss Robinson Helicopter’s cross-
complaint for failing to serve petitioners within the three-
year statutory period.
II. Honeywell and Rolls-Royce
Petitioners contend the respondent court lacked
jurisdiction over them as they were not properly served in
compliance with the Hague Service Convention. We
8
conclude that Honeywell and Rolls-Royce did not properly
effectuate service on petitioners by Federal Express or by
email pursuant to the Hague Service Convention.6
A. Factual Background
Honeywell filed proofs of service of summons on both
petitioners in the respondent court on March 29, 2017.
Rolls-Royce filed its proofs of service on April 25, 2017. The
proofs of service filed by Honeywell and Rolls-Royce checked
a box indicating that petitioners were served “by other
means.”7 Honeywell and Rolls-Royce stated they served
each petitioner by email and Federal Express pursuant to
section 413.10, subdivision (c). The proofs of service
designated a Colombian address for each petitioner.
B. Hague Service Convention
Section 413.10, subdivision (c), 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,
6 Because the respondent court was required to dismiss
Robinson Helicopter’s cross-complaint, any further analysis
will only apply to the remaining cross-complainants,
Honeywell and Rolls-Royce.
7 Cross-complainants did not check the box that
referenced personal service, substituted service, or service by
mail and acknowledgment of receipt of service.
9
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).” “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 (Kott); see also In re Vanessa Q. (2010) 187
Cal. App. 4th 128, 135 [defective service of process is not
cured by actual notice of the action]; Summers v.
McClanahan (2006) 140 Cal. App. 4th 403, 415; Honda Motor
Co. v. Superior Court (1992) 10 Cal. App. 4th 1043, 1049
[“[t]he fact that the person served ‘got the word’ is
irrelevant”].)
The Hague Service Convention is a multilateral treaty
formulated in 1964 by the Tenth Session of the Hague
Conference of Private International Law to revise parts of
the previously-adopted Hague Service Conventions on Civil
Procedure with respect to service of process abroad.
(Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486
U.S. 694, 698 (Volkswagenwerk); Kott, supra, 45 Cal.App.4th
at p. 1133.) The Hague Service Convention “was intended to
10
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, supra, at p. 698.) The United
States was one of the original signatories, and the Hague
Service Convention went into force here in 1969. (Kott,
supra, at pp. 1134–1135.) 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, supra, at p. 699.)
Article 1 of the Hague 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.]” (Volkswagenwerk, supra, 486
U.S. at p. 699.) In interpreting the phrase “occasion to
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.) Thus, service of process is governed by the Hague
Service Convention and, to the extent not inconsistent with
the Convention, by the Code of Civil Procedure. (§ 413.10,
subd. (c); Volkswagenwerk, supra, at pp. 699, 670; see also
Brockmeyer v. May (9th Cir. 2004) 383 F.3d 798, 803–804
(Brockmeyer).)
11
“The primary means by which service is accomplished
under the [Hague Service] Convention is through a receiving
country’s ‘Central Authority.’ The Convention affirmatively
requires each member country to designate a Central
Authority to receive documents from another member
country. [Citation.] The receiving country can impose
certain requirements with respect to those documents (for
example, that they be translated into the language of that
country.) [Citation.] If the documents comply with
applicable requirements, the [Hague Service] Convention
affirmatively requires the Central Authority to effect service
in its country.” (Brockmeyer, supra, 383 F.3d at p. 801.)
Honeywell and Rolls-Royce did not attempt service through
Colombia’s Central Authority. They chose other methods—
Federal Express and email to petitioners’ registered
addresses in Colombia. Petitioners challenge the validity of
service, contending neither form of service complies with the
Hague Service Convention.
1. Service by Federal Express
The Hague Service Convention authorizes other
methods of sending judicial documents to foreign countries.
As pertinent here, Article 10(a) provides the Hague Service
Convention “shall not interfere with . . . the freedom to send
judicial documents, by postal channels, directly to persons
abroad,” “[p]rovided the State of destination does not object.”
Colombia has not objected to Article 10(a).
12
The United States Supreme Court has recently held
that Article 10(a) of the Hague Service Convention does not
prohibit service by mail. (Water Splash, Inc. v. Menon (2017)
__ U.S. __ [137 S. Ct. 1504, 1507] (Water Splash) [resolving a
question that has been divided both federal and California
courts].) However, the court cautioned “this does not mean
that the [Hague Service] Convention affirmatively authorizes
service by mail. Article 10(a) simply provides that, as long
as the receiving state does not object, the Convention does
not ‘interfere with . . . the freedom’ to serve documents
through postal channels. In other words, in cases governed
by the Hague Service Convention, service by mail is
permissible if two conditions are met: first, the receiving
state has not objected to service by mail; and second, service
by mail is authorized under otherwise-applicable law. (See
Brockmeyer, [supra,] 383 F.3d at [pp.] 803–804.)” (Id. at
p. 1513.) Thus, the Supreme Court adopted the Ninth
Circuit’s approach in Brockmeyer, which required that the
receiving state not object to service by mail and that the
forum state in which the action is pending to affirmatively
authorize service by international mail.
In Brockmeyer, the Ninth Circuit explained the
relationship of Article 10(a) and the procedural law of the
forum state as applied to service by mail: “Article 10(a) does
not itself affirmatively authorize international mail service.
It merely provides that the Convention ‘shall not interfere
with’ the ‘freedom’ to use postal channels if the ‘State of
destination’ does not object to their use. . . . Article 10(a), ‘It
13
should be stressed that in permitting the utilization of postal
channels, . . . the draft convention did not intend to pass on
the validity of this mode of transmission under the law of the
forum state: in order for the postal channel to be utilized, it is
necessary that it be authorized by the law of the forum state.’
[Citations.] [¶] In other words, we must look outside the
Hague Convention for affirmative authorization of the
international mail service that is merely not forbidden by
Article 10(a). Any affirmative authorization of service by
international mail, and any requirements as to how that
service is to be accomplished, must come from the law of the
forum in which the suit is filed.” (Brockmeyer, supra, 383
F.3d at pp. 803–804.) Therefore, the validity of Honeywell’s
and Rolls-Royce’s service by Federal Express must come
from California law.
Under California law, there are two applicable sections
of the Code of Civil Procedure that involve service by mail.
Section 415.30 requires that mailing include a notice and
acknowledgment of receipt to be signed by the defendant and
a return envelope, postage prepaid, addressed to the sender.
Honeywell and Rolls-Royce do not claim to have served
petitioners by mail with notice and acknowledgment of
receipt under section 415.30. Similarly, section 415.40
provides, “A summons may be served on a person outside
this state . . . by sending a copy of the summons and of the
complaint to the person to be served by first-class mail,
postage prepaid, requiring a return receipt.” Honeywell and
Rolls-Royce submitted proofs of service for the mailing via
14
Federal Express to petitioners at their registered addresses.
However, neither Honeywell or Rolls-Royce presented any
evidence that either of the mailings required a return
receipt. The proofs of service presented do not include any
returned receipts confirming that petitioners actually
received the service documents. (Bolkiah v. Superior Court
(1999) 74 Cal. App. 4th 984, 1001 [proof of service by mail on
out-of-state defendants must strictly comply with the
requirements of section 417.20, subdivision (a)].) Honeywell
and Rolls-Royce had the burden to prove the facts required
to establish the validity of service on petitioners, but failed
to do so. (Summers v. McClanahan, supra, 140 Cal.App.4th
at p. 413; Dill v. Berquist Construction Co. (1994) 24
Cal. App. 4th 1426, 1439–1440.)
In support of service by Federal Express, Honeywell
and Rolls-Royce rely on section 413.10, subdivision (c), which
permits service of summons outside of the United States: “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 . . . .”
Honeywell and Rolls-Royce contend that Colombia law
authorizes service by Federal Express, and therefore service
by Federal Express on petitioners was proper. This
contention is contrary to the United States Supreme Court
holding that in order to fully comply with the Hague Service
Convention, the forum state (California) must affirmatively
authorize service by international mail. Section 413.10,
subdivision (c), does not affirmatively authorize service by
15
mail, let alone by Federal Express. We conclude that the
attempted service by Federal Express did not constitute
valid service of process under California law, and as a result,
did not comply with the Hague Service Convention pursuant
to Article 10(a).
2. Service by Email
Petitioners challenge service by email under Article 19
of the Hague Service Convention. Article 19 provides, “To
the extent that [the law of the foreign country] permits
methods of transmission, other than those provided for in the
preceding Articles, of documents coming from abroad, for
service within its territory, the present [Hague Service]
Convention shall not affect such provisions.” (Italics added.)
Because Article 10(a) addresses service by mail, our Article
19 analysis is limited to service by email under Colombia
law.
The trial court denied petitioners’ motion to quash
because defendants “proffer undisputed evidence that
Colombia law authorizes email service on corporations
enrolled in the commercial register via their email addresses
recorded in the register. [Citation.] Therefore, email service
was permitted. Email service was reasonably calculated to
give actual notice, especially given that [petitioners]
(specifically) appear now.” Moreover, “There is no dispute
that [petitioners] are Colombia corporations enrolled in the
commercial register or that cross-complainants transmitted
16
the summons and [cross-]complaint to [petitioners’] recorded
email addresses.” The court relied on the declaration of
William Araque-Jaimes, which was submitted in
Honeywell’s opposition to the motion to quash. Araque-
Jaimes explained in his declaration that Colombia’s General
Code of Procedure articles 291 and 292 provide for service of
process by email.8
Although email service is permitted in Colombia, cross-
complainants failed to record acknowledgment of receipt of
the email service in the respondent court’s docket pursuant
to Colombia law. General Code of Procedure articles 291
(personal notification) and 292 (notification by notice)
require an acknowledgment of email receipt filed in the court
docket: “When the e-mail address of the person to be
notified is known, the notice and the procedural ruling being
notified may be sent . . . by the interested party by e-mail. It
shall be considered that the recipient received the notice
when the sender receives acknowledgment of receipt. In this
case, it shall be recorded in the docket, and a print of the
message shall be attached thereto.”
Honeywell and Rolls-Royce concede that they “never
received an e-mail acknowledgement of service and therefore
did not file one.” Honeywell only included copies of the
emails sent to petitioners demonstrating service of
summons, cross-complaint, and other documents in its
8In our alternative writ, we granted petitioners’
request to take judicial notice of Colombia’s General Code of
Procedure articles 289–292.
17
opposition filed in the respondent court on August 9, 2017.
These emails were filed almost five months after Honeywell
attempted service and were not included in its original proof
of service filed on March 29, 2017. (§ 583.210, subd. (b)
[proof of service of the summons must be filed within 60 days
after the time the summons and complaint must be served
on the defendant].) At no point did Rolls-Royce file any
copies of the emails sent to petitioners in the respondent
court. Accordingly, neither cross-complaint was properly
served by email on petitioners pursuant to Colombian law,
as required by Article 19 of the Hague Service Convention.
18
DISPOSITION
Let a peremptory writ of mandate issue directing the
respondent court to vacate its August 28, 2017 order denying
the motion to quash service of summons and dismissing the
cross-complaints, and issue an new order granting the
motion to quash and dismissing the cross-complaints
without prejudice (§ 581, subds. (b)(4), (g)). Petitioners shall
recover their costs in this proceeding.
KRIEGLER, Acting P.J.
We concur:
BAKER, J.
DUNNING, J.
 Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.
19
Filed 2/27/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
INVERSIONES B285092
PAPALUCHI S.A.S. et al.,
(Los Angeles County
Petitioners, Super. Ct.
No. BC514477)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY, ORDER CERTIFYING
OPINION
Respondent; FOR PUBLICATION
ROBINSON HELICOPTER
COMPANY, INC., et al.,
Real Parties in Interest.
THE COURT:
The opinion in the above-entitled matter filed on February
14, 2018, was not certified for publication in the Official Reports.
Upon petitioners’ request and for good cause appearing, it is
ordered that the opinion shall be published in the Official Reports.
1
Pursuant to California Rules of Court, rule 8.1105(b), this
opinion is certified for publication.
________________ _______________ _______________
KRIEGLER, Acting P.J. BAKER, J. DUNNING, J.*
* Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
2