The case of the day is Kita v. Superior Court of Los Angeles County (Cal. Ct. App. 2013). Takahito and Kanako Kita were Japanese nationals who were married in Japan in 2003. They had two children, a son and a daughter, both born in Japan. In 2008, Takahito’s employer transferred him to its California office. The family had E-2 visas. In 2010, Takahito learned that Kanako was having an affair. When he confronted her, she left the marital home with their son. Takahito then returned to Japan with their daughter, and his visa was cancelled without prejudice. Kanako sued for divorce in California, and a few days later, Takahito sued for divorce in Fukuoka, Japan.
Takahito served process on Kanako in California via a process server. The Japanese court gave him notice of a mediation hearing, and the clerk of the Japanese court notified Takahito that the court had received a letter from Kanako stating that she would not participate in the proceedings on account of her earlier-filed California action.
Two days after the Japanese mediation hearing was to have been held, “someone dropped off some documents addressed to [Takahito] at the front desk in the building where he worked.” (Note: when the judge describes service of process in this way, you can tell which way the decision is going to go). Takahito moved to dismiss the California case for insufficient service of process and in the alternative sought a stay or dismissal on grounds of forum non conveniens. A few weeks later, Kanako proofs of service, stating that she had served process by mail to two addresses in Japan.
The Superior Court denied Takahito’s motion to dismiss on the (obviously insufficient) grounds that Takahito had had actual notice of the California proceedings, and Takahito appealed. 1 The appellate court correctly held that actual notice to Takahito was insufficient and that the Hague Service Convention applied. Then the court turned to the first live issue: does Article 10(a) of the Convention authorize service of process by postal channels? 2 The court lined up the California and Ninth Circuit appellate cases on both sides of the issue and then declined to decide the question, holding that even if Article 10(a) does permit service of process by mail, the service was improper because it did not comply with the requirements of California law, which forbids “substituted service” by mail, i.e., service by mail on anyone other than the defendant himself, and because the form of mail did not include a signed acknowledgment of receipt, as California law requires. I like this holding because in order to reach it, the court accurately distinguished between Article 10(a), which simply permits service by mail if the law of the forum authorizes it, and the requirements of the law of the forum. Not all courts take this approach, but I think it is the correct approach given the language of Article 10(a), which simply states that the Convention does not “interfere with” the freedom to use postal channels. This language implies that Article 10(a) itself does not affirmatively authorize service by mail, and that the validity of such service is therefore to be judged under the law of the forum.