用户注册 登录
珍珠湾全球网 返回首页

岳东晓 -- 珍珠湾全球网 ... http://ydx.zzwave.com [收藏] [复制] [分享] [RSS] 岳东晓 -- 珍珠湾全球网

日志

杨文彬案日裔法官再次拒绝动议

热度 2已有 2583 次阅读2016-9-20 04:45 |系统分类:网络与法律| 多伦多, 军国主义, 论文翻译, 书记员, 日本

最近在忙其他事情。今天被提醒了,还有某些问题大家等待进展报告。与所谓 NN无关的事情(如我与某些企业的知识产权争议)我无意在此讨论。其他事情没有进展我暂不做评论。只谈谈多伦多杨文彬。

总的来说,法律上的事情,既然已经启动法律程序,大家都应该依法办事,摆事实、讲道理,心平气和。没有必要吵吵闹闹。诉讼人如此,其他人也是如此。

多伦多杨文彬案的主审法官是日裔 Dennis Hayashi杨文彬诽谤案中根本不涉及日本的内容。我与杨文彬也从未就日本问题发生过争论杨文彬在其法律文件中大力揭发我岳某抗日,加州刘牧野跟进,在其法庭文件中大量揭发我写过多少关于日本罪恶的文章,大事揭发告密之状。当然,杨文彬不会准确把我揭露日本军国主义罪行的论文翻译附上,而是用他们自己的语言进行歪曲性描述。

之后,我向该日裔法官提出他应该退出。按规定,该法官应该将这个判断交给其他法官处理。但他自行裁决不退出,写了一份六页纸的文件。于是,我向法院递交了一封给 HAYASHI 法官的信件,指出 A judge's ruling on the merits of a motion for the judge's own disqualification is in contravention of the Code of Civil Procedure section 170.3(c))(5) (Ann. Rept. (1998), Advisory Letter 5, p.27.)。同时给法官寄出一封 CHAMBERS COPY。结果,法官书记员把这封 CHAMBERS COPY退回,说这是 ex parte communications。我立刻递交了声明,这封信完全是公开递交在法院案卷,并发给诉讼各方,属于公开文件,根本不是 ex parte communication。

另一方面,向杨文彬送递传票的努力仍在继续。之前,我查出 杨文彬使用地址 只是 UPS信箱。上次案件管理会议,我去了趟法院,我对法官说,杨文彬地址是UPS信箱,海牙公约不适应;即使海牙公约适用,按该条约条款10(a), 美国联邦国务院的网站,加拿大政府的解释以及加州上诉法院的判决,在海牙公约下给加拿大被告发传票是可以的。HAYASHI 法官称那你递交个动议。于是我递交了动议。内容如附件。

几天前,HAYASHI  再次拒绝动议。

杨文彬在网上曾声称等着美国的传票、他好扬名美国司法界。但据送达传票的人报告,多次敲门没有人应答。

根据加州法律,传票应该在三年内完成送达。


附件:动议

PLAINTIFF'S NOTICE OF MOTION AND MOTION TO DEEM DEFENDANT YANG SERVED PROCESS

(Code Civ. Proc. §§417.20; 415.40)
(Article 10(a) Hague Service Convention)

Hearing Date: September 14, 2016
Hearing Time: 2:30 PM
Department: 303
Reservation Number: R-1764865 

NOTICE OF MOTION AND MOTION TO DEEM DEFENDANT YANG SERVED PROCESS UNDER CALIFORNIA CODE CIV. PROC. §§ 417.20(d) AND 415.40 OR ARTICLE 10(a) OF THE HAGUE SERVICE CONVENTION

PLEASE TAKE NOTICE that on September 14, 2016, at 2:30 PM., in Department 303 of the above-entitled court, located at George E. McDonald Hall of Justice, 2233 Shoreline Drive, Alameda, California, Plaintiff Dongxiao Yue will, and hereby does, move this Court for an order, to deem defendant Wenbin Yang ("Yang") served process under California Code of Civil Procedure §§417.20(d) and 415.40, or under Article 10(a) of the Hague Service Convention.

This motion is based on this Notice of Motion and the Motion, Plaintiff's Memorandum of Points and Authorities, the Declaration of Dongxiao ("Yue Decl.") being filed concurrently, the pleadings and other papers on file in this case and any other information that may be offered.


MEMORANDUM OF POINTS AND AUTHORITIES

 

INTRODUCTION

            This is an internet defamation and bullying case, arose from Defendants' vicious, defamatory and intimidating web postings targeting Plaintiff and his family. Defendant Wenbin Yang is a resident of Canada. After numerous failed attempts of personal service at Yang's last known address, Plaintiff's process server sent the Summons and Complaint to Yang via international registered mail to an address that Yang provided to this Court. Yang acknowledged that he was properly served process in a recorded telephone conference with Plaintiff, at a Case Management Conference, and in papers Yang submitted to the Court. Plaintiff  found that the address Yang provided to the Court was a UPS mailbox. Plaintiff now requests a Court Order to deem Yang served process.


FACTS AND PROCEDURAL BACKGROUND

            As alleged in the Verified Complaint ("VC"), Plaintiff administers a Chinese language website at zhenzhubay.com ("ZZB"). Defendant Yang registered at the ZZB and engaged in wide ranging attacks on other persons on ZZB, often using sexually explicit, violent and insulting language. Yang's behavior was not limited to ZZB. Yang has been widely recognized as an online hooligan, banned or shunned by almost all the website he frequented. For instance, Yang had been permanently banned by XYS.ORG over 10 years ago. He was also banned by YEYECLUB.COM due to his abusive conduct towards women there. Yang's verbal assaults against women on YEYECLUB included statements that he would pull down their pants and that he would ride on their shoulder and ask them to count his public hair. As the "admin" of ZZB, Plaintiff repeatedly deleted Yang's offending posts and his accounts on ZZB. Eventually, Yang initiated vicious defamatory attacks on Plaintiff and others. Yang specifically challenged Plaintiff to sue him in California. Failing to dissuade Yang from his illegal conduct, Plaintiff commenced the instant action on June 10, 2015. (VC ¶¶ 6-36.)

            Despite Yang's previous online statement that he would be waiting for the American Summons, he played hide-and-seek and posted a message titled "Summons Dead Loop Theory" on ZZB, hinting that he will never be served summons. A Canadian process server made at least five attempts to serve Yang at his last known address: 119 Mintwood Drive,  North York, Ontario, Canada, at around 7:05 AM on June 20th, 2015, at 9:30 PM on June 23rd, 2015, at 7:40 PM on July 10, 2015, and at 9:10 AM and 7:20 PM on July 11, 2015. But no one came to answer the door. Mouthon Decl. ¶¶ 2-6.The process server also sent the Summons and Complaint via registered mail to Yang on June 28, 2015, Mouthon Decl. ¶4, with track number RN082491710CA. According to its online tracking service, the Canadian Post Office left two notices for Yang about the registered mail. The registered mail had not been picked up and had been returned to the sender.

            On August 6, 2015, Plaintiff filed a motion to deem service on Yang complete by email, citing various federal district and appellate court precedents. Under the threat of default, Yang filed a motion to quash on August 10, 2015. Yang provided the Court with the address of "123 - 5863 Leslie Street, Toronto, Ontario M2H 1J8".  On September 24, 2015, the Court noted that Yang could be easily served under CCP §415.40.

            Plaintiff, through another process server, Alysa Demetre, sent the Summons and Complaint to Yang on September 25, 2015 via registered mail with return receipt requested. The USPS tracking record showed that this mail was delivered on October 1, 2015. (Yue Decl. ¶7.) On October 8, 2015, Plaintiff conferred with Yang via telephone regarding the upcoming Case Management Conference ("CMC") scheduled for October 27, 2015. During the meet-and-confer, which was recorded upon Yang's request, Yang acknowledged that he had been served by the registered mail of September 25 and he had no objections to the service of process.(Yue Decl. ¶3.) In the case management statement Plaintiff filed on October 12, 2015, Plaintiff noted that the parties agreed that "Defendant Yang had been properly served in accordance of CCP 415.40".

            On October 13, 2015, Yang served Plaintiff a set of discovery requests (Yue Decl. ¶4.). Yang stated these discovery requests in the case management statement that he filed.

            On October 27, 2015, Yang appeared in the CMC by telephone and through an interpreter, and Plaintiff appeared in person. During the CMC, the presiding Judge asked Yang about the status of service, and Yang confirmed that he had been served process with effective date of October 5th. (Yue Decl. ¶5.)

            On October 29, 2015, Yang filed his second motion to quash on the ground that the Court lacked personal jurisdiction over him. In Yang's reply brief, he admitted that "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13, boldface original).

            On December 17, 2015, the Court granted in part Yang's motion, on the ground that "Plaintiff has not filed a sufficient Proof of Service of the Summons." The Court noted that because Yang was a Canadian resident, the Hague Service Convention applied.

            On December 30, 2015, Plaintiff filed with the Court additional evidence about the delivery of the Summons and Complaint by registered mail. (Yue Decl. ¶7.)

            In 2016, Plaintiff found that Yang's address provided to the Court was a UPS mailbox. (Yue Decl. ¶¶9-11.) Plaintiff now moves to deem Yang properly served.

ARGUMENT

A.  YANG HAS BEEN SERVED UNDER CCP §417.20(d)

            Under CCP §417.20, "Proof that a summons was served on a person outside this state shall be made ... or (d) By the written admission of the party." The word "or" indicates that subsection (d) is disjunctive of other subsections, including subsection (c). In his court filings, Yang admitted that "Defendant has been served easily when Plaintiff followed the instruction of the Court by using a new address." (Def. Reply, Mot. to Quash, p.7:13-14 (December 14, 2015)). Yang further admitted that "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13, boldface original).

            Since Yang has made written admissions to the Court that he has been properly served, his admissions serve as proof that he was served. CCP § 417.20(d).

B. YANG HAS BEEN SERVED UNDER CCP § 415.40

1.  The Hague Service Convention Does Not Apply Because Yang's Address is Unknown

            Article 1 of the Hague Service Convention states that "[t]his Convention shall not apply where the address of the person to be served with the document is not known."[1]  In Buchanan v. Soto, 241 Cal. App. 4th 1353, 194 Cal. Rptr. 3d 663 (Cal. App. 4th Dist. 2015), the defendant did  not provide a current address in Mexico and attempted to "keep his exact whereabouts secret", the court held that "the [Hague Service] Convention does not apply to situations in which the whereabouts of the defendant cannot be ascertained despite reasonable diligence." (Id. at 1366.)

            Plaintiff's process server attempted five times to personally serve Yang at 119 Mintwood Drive,  North York, Ontario, Canada without success. No one came to answer the door. In his paper, Yang admitted the place to be a property he owned, but effectively denied it to be his residential address. Yang provided a new address that he currently uses for Court communications. But it turns out that Yang's new address was only a mailbox at "The UPS Store #188", with website at http://theupsstore.ca/188/. Plaintiff telephoned the store and confirmed that its address is "5863 Leslie St, Toronto Ontario, M2H 1J8" and the number before this address is just the mailbox number. (Yue Decl. ¶¶9-11.)

            Thus, despite Plaintiff's best efforts, Yang's whereabouts cannot be ascertained, accordingly, the Hague Service Convention does not apply. (Buchanan at 1366.)

2.  Yang has been served under CCP § 415.40

            On September 24, 2015, in the Court's order granting Yang's motion to quash, Judge Hayashi noted that Defendant was a resident of Canada, and "Defendant can be served relative easily" under Code of Civil Procedure §415.40.  Since the Hague Service Convention does not apply, Yang may be served under California rules, including CCP § 415.40.

            After receiving the Summons and Complaint from Plaintiff's process server,  in Yang's submissions to the Court, Yang admitted that "Defendant has been served easily when Plaintiff followed the instruction of the Court by using a new address." (Def. Reply, Mot. to Quash, p.7:13-14 (December 14, 2015)). Yang further stated that "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13, boldface original).

            Under CCP 417.20(a), "if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence." Since CCP 415.40 is applicable and Yang admitted that he received the Summons and Complaint, he has been properly served.

C. EVEN IF THE HAGUE SERVICE CONVENTION APPLIES, YANG HAS BEEN PROPERLY SERVED UNDER THE CONVENTION

 

1. Service Of Canadian Defendants By Mail Is Authorized By the Hague Service Convention

            As argued above, the Hague Service Convention does not apply because the whereabouts of Yang cannot be ascertained despite reasonable diligence. Even if the Hague Convention applies, Yang has been served under Article 10(a) of the Convention, which states that "[p]rovided the State of destination does not object, the present Convention shall not interfere with ...  the freedom to send judicial documents, by postal channels, directly to persons abroad."

            Judicial interpretation of Article 10(a) of the Hague Service Convention hinged on whether the word "send" includes "service". In Shoei Kako Co. v. Superior Court (1973) 33 Cal.App.3d 808 [109 Cal.Rptr. 402], the First Appellate District of the Court of Appeal of California held that Article 10(a) of the Hague Service Convention authorizes service of process by mail in a signatory country which does not object to service by postal channels. The Court found that the language of Article 10(a) would be rendered "superfluous unless it was related to the sending of such documents for the purpose of service." (Id. at  821-22). The Shoei Kako decision was relied upon by the federal second circuit in Ackermann v. Levine (2d Cir. 1986) 788 F.2d 830, holding that service of a German judgment on a New York defendant by mail was authorized by the Hague Service Convention "since the United States has made no objection to the use of 'postal channels' under Article 10(a)." Ackermann at 839.

            In the more recent case of Denlinger v. Chinadotcom Corp. (2003) 110 Cal. App. 4th 1396, 2 Cal. Rptr. 3d 530, the Sixth Appellate District made a thorough analysis of Article 10(a) and reached the same conclusion as Shoei Kako. In so doing, the Denlinger court (1) applied the rules in interpreting treaties following U.S. Supreme Court precedent; (2) consulted the "Practical Handbook" on the Hague Service Convention authored by a special commission comprised of experts chosen by signatory governments; (3) referenced the treaty interpretations made by the Executive Branch (the U.S. State Department); (4) considered the understanding of the signatory countries. Id. at 1404-1404. Denlinger  rejected Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043 [12 Cal. Rptr. 2d 861] in this regard, as "Honda did not have the benefit of considering the state department declaration, the Special Commission Reports, the understanding of the signatories, or the Handbook on the Convention." Id. at 1404.  The Denlinger court specifically noted that "Canada does not object to service by postal channels" in its declaration. Id. at 1403.

            The "Service of Process" web page of the U.S. Department of State, in a section titled "Service by International Registered Mail", states that "[s]ervice by registered or certified mail, return receipt requested is an option in many countries in the world."[2] On the country specific page for Canada[3], the U.S. State Department states that "In its Declarations and Reservations on the Hague Service Convention, Canada did not object to the methods of service under Article 10, and does permit service via postal channels." (boldface added.)

            In summary, the overwhelming weight of authority holds that service of process by mail on a Canadian defendant is authorized by Article 10(a) of the Hague Service Convention.

2. Yang Has Been Properly Served Process Under  Article 10(a) of the Hague Convention.

            As shown above, the U.S. State Department declaration, the understanding of the signatories, and the Handbook on the Convention, and the California appellate court decisions based on them (Shoei Kako, Denlinger, supra.) all concluded that service by mail is authorized under Article 10(a) of the Hague Service Convention if the signatory does not object to service via postal channels. Canada does not object to service by postal channels. Denlinger at 1403. The State Department unambiguously states that "Canada... does permit service via postal channels." Service of process on Yang by mail is proper under the Convention.

            Since service by mail on a Canadian defendant was authorized by Article 10(a) of the Hague Service Convention and the evidence established the actual delivery of the Summons and Complaint on Yang by mail, Yang has been properly served process under the Convention.

CONCLUSION

            For the foregoing reasons, Yang has been properly served process, by written admissions in his court filings (CCP §417.20(d)), by actual delivery of the Summons with Yang's acknowledgement of receipt (CCP §415.40). Also, Yang has been served under Article 10(a) of the Hague Convention if the Court found the Convention applicable. Plaintiff respectfully requests a Court Order to deem Yang served process.



[1] https://www.hcch.net/en/instruments/conventions/full-text/?cid=17

[2] http://travel.state.gov/content/travell/en/legal-considerations/judicial/service-of-process.html

[3] http://travel.state.gov/content/travel/en/legal-considerations/judicial/country/canada.html





路过

鸡蛋

鲜花
1

支持

雷人

难过

搞笑

刚表态过的朋友 (1 人)

 

发表评论 评论 (1 个评论)

回复 wx1wx2 2016-9-20 05:40
      

facelist

您需要登录后才可以评论 登录 | 用户注册

Archiver|手机版|珍珠湾全球网

GMT+8, 2017-5-25 09:16 , Processed in 0.021432 second(s), 8 queries , Apc On.

Powered by Discuz! X2.5

回顶部