Case of the Day: Lebel v. Mai

The case of the day is Lebel v. Mai (Cal. App. Ct. 2012). Laura Lebel was a tenant of Eric Mai under a 2010 condominium lease. She became dissatisfied with the tenancy, moved out of the apartment, and brought an action for constructive eviction and fraud in the Los Angeles County Superior Court. Lebel’s process server tried to serve the summons on Mai at a residential address in Granada Hills, California—the address to which the lease required Lebel to mail her rent payments. The process server delivered the summons to a “co-occupant”, Eric Mai’s mother, who told the process server that Eric Mai did not live there. Mai moved to quash the service of process and submitted a declaration stating that he lived in London and had no residence in the United States. Lebel opposed the motion on the grounds that Mai’s mother was his “ostensible agent” and that the Hague Service Convention did not apply because Mai’s address in England was unknown to Lebel. She submitted a copy of her lease agreement showing that Mai had left blank the space for an address where notices to him could be directed. However, Lebel conceded she knew that Mai was residing in England at least temporarily.

The Superior Court granted Mai’s motion to quash the service, and Lebel appealed. The court, applying California precedent, held that although Article 1 of the Convention states that the Convention does not apply if the defendant’s address is unknown, the plaintiff must exercise some degree of diligence before relying on ignorance of the defendant’s whereabouts. Here, Lebel admitted that she made no inquiries. This is a good cautionary note.

The court also rejected the service on Mai’s mother, though noting that under the principle of Volkswagen, service on a domestic agent is proper even when the defendant is in another Convention state. The basis for the court’s decision on this point was a failure of proof that Mai’s mother really was Mai’s agent. At most, the court held, the plaintiff had shown that Mai’s mother was an agent for the limited purpose of receiving the rent. As this part of the decision rests on pure California law considerations, I do not delve into it too deeply.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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