Rockefeller Technology Investments (Asia II) v. Changzhou Sinotype Technology Co., LTD

This appeal concerns an aborted international business

deal between Changzhou SinoType Technology Company, Ltd.

(SinoType), a Chinese company, and Rockefeller Technology

Investments (Asia) VII (Rockefeller Asia), an American

investment partnership. When the relationship between the two

entities soured, Rockefeller Asia pursued contractual arbitration

against SinoType in Los Angeles. SinoType did not appear or

participate in the arbitration proceeding, and the arbitrator

entered a default award in excess of $414 million against it. The

award was confirmed and judgment entered, again at a

proceeding in which SinoType did not participate.

Approximately 15 months later, SinoType moved to set

aside the judgment on the grounds that it had never entered into

a binding contract with Rockefeller Asia, had not agreed to

contractual arbitration, and had not been served with the

summons and petition to confirm the arbitration award in the

manner required by the Convention on the Service Abroad of

Judicial and Extrajudicial Documents in Civil or Commercial

Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638

(hereafter, Hague Service Convention or Convention). The trial

court acknowledged that the service of the summons and petition

had not complied with the Hague Service Convention, but

concluded that the parties had privately agreed to accept service

by mail. The court therefore denied the motion to set aside the

judgment.

We reverse. As we discuss, the Hague Service Convention

does not permit Chinese citizens to be served by mail, nor does it

allow parties to set their own terms of service by contract.

SinoType therefore was never validly served with process. As a

result, “no personal jurisdiction by the court [was] obtained and

3

the resulting judgment [is] void as violating fundamental due

process.” (County of San Diego v. Gorham (2010)

186 Cal.App.4th 1215, 1227.) The trial court therefore erred in

denying the motion to set aside the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties and the MOU

SinoType is a Chinese company headquartered in

Changzhou, China that develops and licenses Chinese fonts.

Kejian (Curt) Huang (hereafter, Curt)

1, a citizen and resident of

China, is SinoType’s chairman and general manager.

Rockefeller Asia is an American investment partnership

headquartered in New York. Faye Huang (hereafter, Faye) is

Rockefeller Asia’s president.

In 2007 and 2008, Curt and Faye met several times in

Los Angeles to discuss forming a new company to market

international fonts. On February 18, 2008, they signed a fourpage

Memorandum of Understanding (MOU), the legal

significance of which is disputed. The MOU stated that the

parties intended to form a new company, known as World Wide

Type (WWT), which would be organized in California and have its

principal offices in the Silicon Valley. SinoType would receive an

87.5 percent interest in WWT “and shall contribute 100% of its

interests in the companies comprising Party A, i.e., Changzhou

SinoType Technology.” Rockefeller Asia would receive a

12.5 percent interest in WWT “and shall contribute 100% of its



1 Because two principals share a last name (although they

are not related to one another), for clarity we refer to them by

their first names.

4

interests in the companies comprising Party B, i.e., Rockefeller

Technology Investments (Asia) VII.”

The MOU provided that “[t]he parties shall proceed with all

deliberate speed, within 90 days if possible, to draft and to all

execute long form agreements carrying forth the agreements

made in this Agreement, together with any and all documents in

furtherance of the agreements.” It also provided, however, that

“[u]pon execution by the parties, this Agreement shall be in full

force and effect and shall constitute the full understanding of the

Parties that shall not be modified by any other agreements, oral

or written.”

The MOU contained several provisions governing potential

disputes between the parties, as follows:

“6. The Parties shall provide notice in the English

language to each other at the addresses set forth in the

Agreement via Federal Express or similar courier, with copies via

facsimile or email, and shall be deemed received 3 business days

after deposit with the courier.

“7. The Parties hereby submit to the jurisdiction of the

Federal and State courts in California and consent to service of

process in accord with the notice provisions above.

“8. In the event of any disputes arising between the

Parties to this Agreement, either Party may submit the dispute

to the Judicial Arbitration & Mediation Service in Los Angeles

for exclusive and final resolution pursuant to according to [sic] its

streamlined procedures before a single arbitrator . . . . Disputes

shall include failure of the Parties to come to Agreement as

required by this Agreement in a timely fashion.”

5

B. The 2013 Arbitration

The relationship between the parties soured, and in

February 2012, Rockefeller Asia filed a demand for arbitration

with the Judicial Arbitration & Mediation Service (JAMS) in Los

Angeles.2 SinoType did not appear at the arbitration, which

proceeded in its absence.

The arbitrator issued a final award on November 6, 2013.3

He found as follows:

Rockefeller Asia is a special-purpose entity organized to

provide capital to support technology companies in Asia. Its

partners include Rockefeller Fund Management Co., LLC.

In February 2008, SinoType and Rockefeller Asia entered

into a MOU in which they agreed to form a new company (WWT).

Each party was to contribute its entire interest in its business to

WWT. In return, SinoType was to receive an 87.5 percent

interest, and Rockefeller Asia was to receive a 12.5 percent

interest, in WWT. In 2008, Rockefeller Asia was funded with

stock worth $9.65 million.



2 Rockefeller Asia contends the demand for arbitration was

properly served in accordance with the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards of

June 10, 1958, codified as title 9 of the United States Code,

sections 201 et seq. However, the propriety of the service of the

arbitration demand is not before us, and thus we do not reach the

issue.

3 The award stated that because SinoType had not appeared,

the case proceeded under Article 27 of the JAMS International

Rules, which authorizes an arbitrator to proceed by default where

one party has failed to appear.

6

In 2010, the parties sought additional investors to buy a

10 percent interest in WWT. The highest offer, obtained in

May 2010, was for $60 million. After receiving this offer,

SinoType insisted that Rockefeller Asia agree to a reduction of its

interest. When Rockefeller Asia refused, SinoType unilaterally

terminated the MOU.

Rockefeller Asia’s damages expert opined that Rockefeller

Asia’s damages included three components: loss of its

12.5 percent interest in WWT; loss of its control premium, which

the expert valued at 10 percent of WWT’s total value; and loss of

its anti-dilution rights, which the expert valued at 6.25 percent of

WWT’s total value. Thus, Rockefeller Asia’s damages were equal

to 28.75 percent (12.5% + 10% + 6.25% = 28.75%) of WWT’s value.

The expert opined that WWT’s value at the time SinoType

terminated the MOU was $600 million, and therefore Rockefeller

Asia’s damages at termination were approximately $172 million

($600,000,000 x .2875 = $172,500,000). However, the expert

opined that Rockefeller’s damages should be valued at the time of

the arbitration, not the time of the termination. He estimated

SinoType’s value at the time of arbitration using “the ‘wave’

method . . . which assumes that [the company’s] value has grown

over the same interval at the same rate as other firms ‘riding the

same economic wave.’ ” The expert selected Apple Corporation as

the “comparator firm,” and estimated SinoType’s current value by

assuming a 240 percent increase between July 2010 and

February 2012—i.e., the same increase that Apple experienced

during a comparable period. The expert thus estimated

Rockefeller Asia’s damages to be $414 million, which was “28.5%

of the estimated total value of [SinoType] of $1.440 billion, using

the wave method.”

7

The Arbitrator “accept[ed] the evidence presented through

[Rockefeller Asia’s expert] concerning the percentage values of

the control premium and the anti-dilution clause,” and also

“adopt[ed] [Rockefeller Asia’s] proposal to set the date of

valuation at February 2012.” Based on the foregoing, the

arbitrator awarded Rockefeller Asia $414,601,200.

C. Order Confirming the Arbitration Award

Rockefeller Asia filed a petition to confirm the arbitration

award. Subsequently, it filed a proof of service of summons,

which declared that it had served SinoType in China by Federal

Express on August 8, 2014, in accordance with the parties’

arbitration agreement.

Following a hearing at which SinoType did not appear, on

October 23, 2014, the trial court confirmed the arbitration award

and entered judgment for Rockefeller Asia in the amount of

$414,601,200, plus interest of 10 percent from November 6, 2013.

D. SinoType’s Motion to Set Aside the Judgment

On January 29, 2016, SinoType filed a motion to set aside

the judgment and to quash service of the summons. The motion

asserted that the order confirming the arbitration award and

resulting judgment were void because SinoType had not been

validly served with the summons and petition to confirm.

SinoType explained that because it is a Chinese company,

Rockefeller Asia was required to serve the summons and petition

pursuant to the Hague Service Convention. Rockefeller Asia did

not do so. Instead, it served SinoType by Federal Express, which

is not a valid method of service on Chinese citizens under the

Convention. Moreover, the parties had not intended the MOU to

be a binding agreement, and thus the MOU’s provision for mail

service was not enforceable.

8

In support of its motion, SinoType submitted the

declaration of Curt Huang, which stated in relevant part as

follows:

Curt met Faye in 2007. Faye introduced herself as the

CEO of Rockefeller Pacific Ventures Company and offered to

introduce Curt to Nicholas Rockefeller (Rockefeller), who Faye

said might be interested in investing in a project. Curt met with

Rockefeller in July 2007 and discussed forming a new company

that would develop software with fonts in many different

alphabets and languages. Rockefeller expressed interest in the

project. However, “[t]he name of the Rockefeller entity which

Nicholas Rockefeller proposed to do business with SinoType

changed on several occasions” and Curt “grew increasingly

uncomfortable about the lack of clarity as to which company

Nicholas Rockefeller proposed to do business with SinoType.”

The parties met several more times in 2007 and 2008, but

they did not make significant progress in consummating a deal.

In February 2008, Faye offered to prepare a document referred to

in Chinese as a “bei wang lu.” According to Curt, a “bei wang lu”

is a memorandum of understanding between parties that records

the current state of negotiations; it “does not necessarily reflect

terms to which the parties have agreed” and “is often used where

there has been no real progress in a business meeting to

memorialize the discussion so that the parties can pick up on the

negotiations at a later meeting.” The signing of a “bei wang lu”

“does not create a binding contract.” In contrast, Curt said, there

are three other kinds of Chinese agreements: a “yi xiang shu” is

“a letter of intent and reflects the intentions of the parties to

enter into an agreement before a formal contract exists;” a “xie

yi” is an agreement “which is usually, but not always legally

9

binding;” and a “he tong” is “a formal contract, which is legally

enforceable.”

In February 2008, Faye presented Curt with a draft

“bei wang lu.” Curt said he had only about 10 minutes to review

the document, but he told Faye that many of the proposed terms

were unacceptable, including the designation of “Party B” as

Rockefeller Asia (an entity Curt said he had never heard of), the

anti-dilution protections for Rockefeller Asia, and the failure to

indicate the amount of Rockefeller Asia’s proposed contribution to

the project. Curt was reluctant to sign the document, but was

convinced to do so by Faye’s assurances that the terms would be

modified in a long-form agreement (or “xie yi”) that would be

drafted within 90 days. Curt ultimately signed the document

“because I knew it was not a binding document and I wanted to

see progress on the deal. I felt the MOU would push Rockefeller

to draft the long form agreement within 90 days.”

When he signed the MOU, Curt “had no intention to waive

SinoType’s right to service of process or [to] agree[] to arbitration.

Because I only had ten minutes to review the MOU, I did not

even know that it contained a statement saying SinoType would

agree to alternate service. I believed that the ‘bei wang lu’ had

no legal implications and all of the terms would be negotiated

and modified later in the actual contract.”

In February 2010, Faye and Rockefeller told Curt they

wanted a 12.5 percent equity in the new venture. Curt said he

would be willing to give them equity on a commission basis once

they raised capital, but he would not consider giving them any

equity in the new company before they had raised funds.

In June 2010, Faye emailed Curt a draft Stock Purchase

Agreement and other ancillary agreements. The draft “was not

10

something to which [Curt] could or would ever agree.” Curt told

Faye he would not sign the draft documents. Communications

between the parties ended in March 2011.

Curt received a letter at the end of January 2012 that

referenced arbitration. He did not believe he had to respond to

the letter because it was not a court document. He received

subsequent FedEx packages and emails from Rockefeller, but he

did not open them.

In March 2015, Curt heard from a client that Rockefeller

Asia was alleging that SinoType owed it money. He then sought

the advice of counsel, who opened the FedEx packages. That was

when Curt learned an arbitrator had awarded Rockefeller Asia

more than $414 million, which Curt said was more than 70 times

SinoType’s total revenue for the entire period from 2009 to 2013.

Rockefeller Asia did not transfer stock to SinoType, nor did

it ever propose to do so.

E. Rockefeller Asia’s Opposition to Motion to Set Aside

the Judgment

Rockefeller Asia opposed SinoType’s motion to set aside the

judgment, urging that the motion was untimely; the 2008 MOU

was valid and enforceable; and the summons and petition to

confirm the arbitration award had been properly served. In

support of its opposition, Rockefeller Asia submitted Faye

Huang’s declaration, which stated in relevant part as follows:

By the end of 2007, Rockefeller Asia and SinoType had

decided to enter into a formal arrangement. On February 18,

2008, Faye and Curt executed the MOU. “At no point did I

represent to Curt in either the English or the Mandarin Chinese

language that the 2008 Agreement would not be considered an

enforceable agreement . . . . There would be no purpose for Curt

11

and me to sign the 2008 Agreement if that document was to be

considered a nullity. At no point did Curt state that he disagreed

with a single term in the [MOU] or inform me that the . . .

provisions were not exactly as we had agreed.”

Upon the signing of the MOU, “an Assignment of

Partnership Interests was executed by the Rockefeller Parties

pursuant to which they transferred their partnership interest,

which had a value of $9.65 million, to SinoType per the terms of

the [MOU].”

Faye declared that “Curt and I intended the [MOU] to be

effective and binding immediately, as its term provided that it

could be modified only in a writing signed by both parties.

However, we also anticipated that, while the short-form

agreement would suffice for our mutual needs, a long-form

agreement that would satisfy the very strenuous and impersonal

requirements of the international investment community would

be necessary to attract additional institutional investors in the

future. Therefore, the [MOU] called for the parties to try to have

the long-form agreement available ‘with all deliberate speed,’

within 90 days if possible.” However, the 90-day guideline for

preparing the long-form documents “proved impossible.” Due to

the 2008 recession, no third-party financing was on the horizon,

and thus “the parties continued to operate under the binding

2008 Agreement.” Throughout this time, Rockefeller Asia

“continued to perform and to supply tangible and intangible

resources to SinoType.”

According to to Faye’s declaration, SinoType survived the

economic downturn in large part because of Rockefeller Asia’s

efforts, and by 2009 SinoType’s internal evaluation showed that

its then-current value approached $500 million and would

12

increase in five years to almost $2 billion. Ultimately, however,

the relationship between the companies began to deteriorate, and

in July 2010, SinoType informed Rockefeller Asia that it had

abrogated the MOU and Rockefeller Asia no longer owned a 12.5

percent interest in SinoType. Further, Curt told Faye that as a

Chinese company, SinoType was immune to American legal

remedies and would refuse to participate in any legal process in

the United States.

F. Order Denying Motion to Set Aside Judgment

On April 15, 2016, the trial court denied the motion to set

aside the judgment. The court found that service by Federal

Express was permitted by the MOU, which the arbitrator had

found to be a binding contract. Further, although the court found

that Rockefeller Asia had not properly served SinoType under the

Hague Service Convention, it concluded that the parties were

permitted to contract around the Convention’s service

requirements. It explained: “To allow parties to enter into a

contract with one another and then proceed to unilaterally

disregard provisions out of convenience, like the one at issue

here, would allow parties to simply return to their respective

countries in order to avoid any contractual obligations. As aptly

noted by [Rockefeller Asia] in its opposition, this would

essentially result in anarchy and turn the entire international

arbitration law on its head. . . . Furthermore, this court cannot

find (and [SinoType] has not provided) any case law that would

indicate parties are not permitted to contractually select

alternative means of service and thus they are not able to waive

the service provisions within the Hague Convention.”

Finally, the court said, “assuming for the sake of argument

that somehow [Rockefeller Asia] was actually required to serve

13

the Summons and Petition in this action upon [SinoType] in the

manner suggested by [SinoType] (to wit, vis-a-vis the protocols

established by the Chinese government), once [SinoType] was

‘served’ with the Summons and Petition in the manner which

actually occurred in this case it had an obligation do something –

to do exactly what it is doing now – to specially appear and to file

a motion to quash. This is what is called acting with ‘diligence.’

. . . [¶] The law is well settled that if a party is seeking to obtain

relief from this court’s equitable powers, it must act with

reasonable diligence. [Citations.] Thus, to the extent that

[SinoType] is also seeking to have this court exercise its broad

equitable powers to grant the requested relief, under the totality

of the circumstances it respectfully declines to grant such

equitable relief due to the lack of reasonable diligence by the

defendant in seeking relief . . . .”

SinoType timely appealed from the order denying the

motion to set aside the judgment.4



4 SinoType has filed a request for judicial notice in

connection with this appeal. Such notice is available in the trial

court “and, independently, in the Court of Appeal (Evid. Code,

§ 459) which is not bound by the trial court’s determination.”

(Volkswagenwerk Aktiengesellschaft v. Superior Court (1981)

123 Cal.App.3d 840, 852, superseded on other grounds as stated

in American Home Assurance Co. v. Societe Commerciale

Toutelectric (2002) 104 Cal.App.4th 406, 409.) We grant the

request as to the Hague Service Convention and articles 260 and

261 of the Civil Procedure Law of the People’s Republic of China

(exhibits 3, 4, and 5), and otherwise deny it. (See Noergaard v.

Noergaard (2015) 244 Cal.App.4th 76, 81, fn. 1 [judicial notice of

Hague Convention]; Societe Civile Succession Richard Guino v.

Redstar Corp. (2007) 153 Cal.App.4th 697, 701, superseded by

statute on another ground as stated in Hyundai Securities Co.

14

DISCUSSION

SinoType contends the trial court was required to set aside

the judgment because Rockefeller Asia never properly served it

with the summons and petition to confirm the arbitration award.

Specifically, SinoType urges that: (1) mail service in China is not

authorized by the Hague Service Convention; (2) the

Convention’s service provisions were not superseded by the MOU;

and (3) Rockefeller Asia’s failure to properly serve the summons

and petition rendered the judgment void and, thus, subject to

being set aside at any time.

Rockefeller Asia agrees that the Convention does not

permit mail service in China, but it urges that parties may by

contract set their own terms of service. Rockefeller Asia further

urges that it served the summons and petition on SinoType in the

manner provided by the MOU; and, in any event, SinoType’s

motion to set aside the judgment was untimely.

As we now discuss, the Hague Service Convention does not

permit parties to set their own terms of service by contract.

Instead, it requires service on foreign parties to be carried out as

specified in the Convention by the receiving country. China does

not permit its citizens to be served by mail, and thus SinoType

was not validly served with the summons and petition. In the

absence of proper service, the trial court never obtained personal

jurisdiction over SinoType, and thus the judgment against

SinoType necessarily was void. Because a void judgment can be

set aside at any time, SinoType’s motion to set aside the



Ltd. v. Ik Chi Lee (2013) 215 Cal.App.4th 682, 693 [judicial notice

of law of a foreign nation].)

15

judgment necessarily was timely. The trial court therefore erred

in denying SinoType’s motion to set aside the judgment.

I.

Standard of Review

We review the order denying SinoType’s motion to set aside

the judgment for an abuse of discretion. (J.M. v. G.H. (2014)

228 Cal.App.4th 925, 940; County of San Diego v. Gorham (2010)

186 Cal.App.4th 1215, 1225 (Gorham).) “ ‘ “The abuse of

discretion standard . . . measures whether, given the established

evidence, the act of the lower tribunal falls within the permissible

range of options set by the legal criteria.” ’ [Citation.] The scope

of the trial court’s discretion is limited by law governing the

subject of the action taken. [Citation.] An action that

transgresses the bounds of the applicable legal principles is

deemed an abuse of discretion. [Citation.] In applying the abuse

of discretion standard, we determine whether the trial court’s

factual findings are supported by substantial evidence and

independently review its legal conclusions. [Citation.]” (In re

Marriage of Drake (2015) 241 Cal.App.4th 934, 939–940.)

II.

Rockefeller Asia Did Not Properly Serve

SinoType with the Summons and Petition to

Confirm the Arbitration Award

A. The Hague Service Convention

The Hague Service Contention “is a multinational treaty

formed in 1965 to establish an ‘appropriate means to ensure that

judicial and extrajudicial documents to be served abroad shall be

brought to the notice of the addressee in sufficient time.’ (Hague

Convention preamble, 20 U.S.T. 361, 362, T.I.A.S. No. 6638,

reprinted in 28 U.S.C.A. Fed.R.Civ.P. 4, note, at 130 (West Supp.

16

1989).) The Hague Convention provides specific procedures to

accomplish service of process. Authorized modes of service are

service through a central authority in each country; service

through diplomatic channels; and service by any method

permitted by the internal law of the country where the service is

made. (See [Hague Service Convention], arts. 2–6, 8, 19; see also

discussion in Bankston v. Toyota Motor Corp. (8th Cir. 1989)

889 F.2d 172, 173.) Each signatory nation may ratify, or object

to, each of the articles of the [Hague Service Convention].

([Hague Service Convention], art. 21.)” (Honda Motor Co. v.

Superior Court (1992) 10 Cal.App.4th 1043, 1045 (Honda Motor

Co.).) Both the United States and China are signatories

(sometimes referred to as “contracting States”) to the Hague

Service Convention. (Hague Conference on Private International

Law, 14: Convention of 15 November 1965 on the Service Abroad

of Judicial and Extrajudicial Documents in Civil or Commercial

Matters (Apr. 11, 2018) Status Table



[as of May 31, 2018].)

In the United States, state law generally governs service of

process in state court litigation. However, by virtue of the

Supremacy Clause, United States Constitution, Article VI, the

Convention preempts inconsistent methods of service prescribed

by state law in all cases to which the Convention applies. (See

Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S.

694, 699 [108 S.Ct. 2104, 100 L.Ed.2d 722] (Volkswagenwerk).)

Thus, although a summons issued by a California state court

generally must be served pursuant to the Code of Civil Procedure

(§§ 413.10 et seq.), service in the present case was governed by

the Hague Service Convention, not the Code of Civil Procedure.

17

(See Honda Motor Co., supra, 10 Cal.App.4th at p. 1049 [“the

preemptive effect of the Hague Convention as to service on

foreign nationals is beyond dispute”].)

B. The Convention Does Not Permit Mail Service on

Citizens of Countries That, Like China, Have Filed

Objections to Article 10 of the Convention

Article 2 of the Convention provides that each contracting

state shall designate a “Central Authority” that will receive

requests for service from other contracting states. (Hague

Service Convention, supra, 20 U.S.T. at p. 362.) Article 5

provides that the Central Authority of the state addressed “shall

itself serve the document or shall arrange to have it served by an

appropriate agency, either –

“(a) by a method prescribed by its internal law for the

service of documents in domestic actions upon persons who are

within its territory, or

“(b) by a particular method requested by the applicant,

unless such a method is incompatible with the law of the State

addressed.” (Hague Service Convention, supra, 20 U.S.T. at

pp. 362-363.)

Article 10 of the Convention provides for alternative

methods of service if permitted by the “State of destination.” As

relevant here, it says: “Provided 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.” (Hague Service Convention, supra, 20 U.S.T.

at p. 363, italics added.)

China has filed a “reservation” to Article 10, which states

that it “oppose[s] the service of documents in the territory of the

People’s Republic of China by the methods provided by Article 10

18

of the Convention.” (Hague Conference on Private International

Law, Declaration/Reservation/Notification

[as of May 31, 2018].) Accordingly, foreign

plaintiffs “cannot rely on Article 10’s allowance for service via

‘postal channels’ because [China] is among the countries who

have formally objected to such means of service, rendering Article

10 inapplicable.” (Prince v. Government of People’s Republic of

China (S.D.N.Y. Oct 25, 2017, No. 13-CV-2106 (TPG)) 2017 WL

4861988, p. *6; see also Zhang v. Baidu.com Inc. (S.D.N.Y. 2013)

932 F.Supp.2d 561, 567 [mail service of summons and complaint

on Chinese defendant did not constitute proper service: “[T]he

Hague Convention allows for service through ‘postal channels,’

but only if ‘the State of destination does not object.’ . . . China

has objected.”]; and see Pats Aircraft, LLC v. Vedder Munich

GmbH (D. Del. 2016) 197 F.Supp.3d 663, 673 [“Germany . . . has

specifically objected to service by mail under the Hague

Convention. [Citation.] As such, service of process upon a nonresident

defendant in Germany must comply with the other

relevant service provisions of the Hague Convention.”]; RSM

Production Corp. v. Fridman (S.D.N.Y May 24, 2007, No. 06 Civ.

11512 (DLC)) 2007 WL 1515068, p. *2 [“The Hague Service

Convention . . . prohibits service through certified international

mail or Federal Express International Priority mail on

individuals residing in the Russian Federation due to that

country’s objection to Article 10”]; Shenouda v. Mehanna (D.N.J.

2001) 203 F.R.D. 166, 171 [“Article 10 permits parties to send

judicial documents via postal channels or through judicial officers

in the receiving nation. [Citation.] This provision, however, is

inapplicable here because Egypt has objected to Article 10 in its

19

entirety.”]; Honda Motor Co., supra, 10 Cal.App.4th at p. 1049

[“Since the attempted mail service on Honda was improper under

the Hague Convention, the trial court should have granted the

motion to quash service on defendant Honda.”].)

Accordingly, because China has objected to Article 10,

Rockefeller Asia’s mail service of the summons and petition on

SinoType was not effective under the Hague Service Convention.

C. Parties May Not Contract Around the Convention’s

Service Requirements

Rockefeller Asia concedes that mail service on Chinese

citizens by foreign litigants is not permitted under the

Convention. It urges, however, that parties can “contract

around” the Convention’s service requirements. For the reasons

that follow, we do not agree.

“In interpreting an international treaty, we are mindful

that it is ‘in the nature of a contract between nations,’ [citation],

to which ‘[g]eneral rules of construction apply.’ [Citations.] We

therefore begin ‘with the text of the treaty and the context in

which the written words are used.’ [Citation.] The treaty’s

history, ‘ “the negotiations, and the practical construction

adopted by the parties” ’ may also be relevant. [Citation.]”

(Société Nat. Ind. Aéro. v. U.S. Dist. Court (1987) 482 U.S. 522,

533–534 [107 S.Ct. 2542, 2550, 96 L.Ed.2d 461] (Société).)

By its own terms, the Convention applies to “all cases, in

civil or commercial matters, where there is occasion to transmit a

judicial or extrajudicial document for service abroad.” (Hague

Service Convention, supra, 20 U.S.T. at p. 362, italics added.)

This language “is mandatory.” (Volkswagenwerk, supra, 486 U.S.

20

at p. 699, italics added; see also Société, supra, 482 U.S. at p. 534,

fn. 15 [same].)5

Further, the Convention emphasizes the right of each

contracting state—not the citizens of those states—to determine

how service shall be effected. For example, Article 2 of the

Convention provides that each state shall organize a Central

Authority “which will undertake to receive requests for service

coming from other contracting States”; Article 5 provides that

each state shall effect service in the manner requested “unless

such a method is incompatible with the law of the State addressed

[i.e., the receiving state]”; and Article 11 provides that the

Convention “shall not prevent two or more contracting States

from agreeing to permit . . . channels of transmission other than

those provided for in the preceding articles.” (Hague Service

Convention, supra, 20 U.S.T. at pp. 362-364, italics added.) As

relevant here, Article 261 of the Civil Procedure Law of the

People’s Republic of China (of which we have taken judicial

notice) provides that a request for judicial assistance “shall be

conducted through channels stipulated to in the international



5 In contrast, the United States Supreme Court has held that

the Hague Convention on the Taking of Evidence Abroad in Civil

or Commercial Matters (Evidence Convention), 23 U.S.T. 2555,

T.I.A.S. No. 7444, which does not contain analogous mandatory

language, does not “purport to describe the procedures for all

permissible transnational discovery and exclude all other existing

practices.” (Société, supra, 482 U.S. at p. 534.) The court found

the Evidence Convention’s omission of mandatory language

“particularly significant in light of the same body’s use of

mandatory language in the preamble to the Hague Service

Convention, 20 U.S.T. 361, T.I.A.S. No. 6638.” (Id. at p. 534,

fn. 15.)

21

treaties concluded or acceded to by the People’s Republic of

China. . . . Except for the circumstances specified in the

preceding paragraph, no foreign agency or individual may serve

documents . . . within the territory of the People’s Republic of

China without the consent of the in-charge authorities of the

People’s Republic of China.” Permitting private parties to avoid a

nation’s service requirements by contract is inconsistent with

Article 261, as well as with the Convention’s stated intention to

avoid infringing on the “sovereignty or security” of member

states. (See Hague Service Convention, supra, 20 U.S.T. at

p. 364.)

Finally, as we have said, the Convention expressly allows

each “State of destination” to decide whether to permit mail

service on its citizens by foreign defendants. (See Hague Service

Convention, supra, 20 U.S.T. at p. 363 [Convention does not

prohibit mail service “[p]rovided the State of destination does not

object”], italics added.) The Convention does not include an

analogous provision allowing private parties to international

contracts to agree to accept service by mail.

Rockefeller Asia does not offer any “plausible textual

footing” (Water Splash, Inc. v. Menon (2017) __ U.S. __, __ [137

S.Ct. 1504, 1509–1510, 197 L.Ed.2d 826]) for the proposition that

parties may contract around the Hague Service Convention, but

instead relies on two cases from other jurisdictions, neither of

which is persuasive. The first, Alfred E. Mann Living Trust v.

ETIRC Aviation S.A.R.L. (N.Y. App. 2010) 78 A.D.3d 137, 141,

910 N.Y.S. 2d 418 (Alfred E. Mann), provides no textual analysis

to support the New York Court of Appeal’s conclusion that the

requirements of the Convention may be waived by contract; the

court simply says that it can see “no reason why” it should reach

22

a contrary conclusion. The analysis of Masimo Corp. v. Mindray

DS USA Inc. (C.D. Cal., Mar. 18, 2013) 2013 WL 12131723 is

equally cursory; the district court stated: “The Court sees no

reason why parties may not waive by contract the service

requirements of the Hague Convention, especially given that

parties are generally free to agree to alternative methods of

service. [Defendant] provides no authority to the contrary, and

the Court’s position is in accord with [Alfred E. Mann].” (Id. at

p. 3.)6

Consistent with the Convention’s language, we therefore

conclude that parties may not agree by contract to accept service

of process in a manner not permitted by the receiving country.

Accordingly, because service on SinoType was effected by

international mail, which is not a permitted form of service on

Chinese citizens under the Convention, we conclude that

SinoType was not validly served with the summons and petition

to confirm the arbitration award.

III.

Because SinoType Was Not Properly Served

with the Summons and Petition, the Court

Did Not Acquire Jurisdiction Over SinoType,

and the Resulting Judgment Is Void

Having concluded that SinoType was not validly served

with the summons and petition, we now consider the effect of the



6 The two remaining cases on which Rockefeller Asia relies

address the Hague Convention on Taking of Evidence Abroad, not

the Hague Service Convention. (Image Linen Services, Inc. v.

Ecolab, Inc. (M.D. Fla., Mar. 10, 2011) 2011 WL 862226, pp. *4–5

& fn. 6; Boss Mfg. Co. v. Hugo Boss AG (S.D.N.Y., Jan. 13, 1999)

1999 WL 20828, p. *1.)

23

invalid service. SinoType contends that because it was not

properly served with the summons and petition, the trial court

did not acquire jurisdiction over it, and the resulting judgment

thus is void. Rockefeller Asia disagrees, contending that the

judgment was valid because SinoType had actual notice of the

proceedings and did not timely move to set aside the judgment.

As we now discuss, SinoType is correct.

A. A Judgment Obtained in the Absence of Proper

Service of Process Is Void

Compliance with the statutory procedures for service of

process “ ‘ “is essential to establish personal jurisdiction.” ’

[Citation.]” (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th

1145, 1152 (Renoir).) Thus, in Honda Motor Co., supra,

10 Cal.App.4th 1043, the court held that service on a Japanese

corporation that did not comply with the Hague Service

Convention had to be quashed even though the Japanese

defendant had actually received the summons and complaint.

The court explained: “[Plaintiff’s] arguments share a common

fallacy; they assume that in California, actual notice of the

documents or receipt of them will cure a defective service. That

may be true in some jurisdictions, but 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.] . . . [¶] . . . [¶] Plaintiff argues that it is

ridiculous, wasteful and time consuming to reverse the trial court

just to force plaintiff to go through the motions of a service under

the convention, when there is no question but that Honda has

notice of the action, its attorneys stand ready to defend it, and no

practical aim can be accomplished by quashing the service.

However, plaintiff cites no authority permitting a California

24

court to authorize an action to go forward upon an invalid service

of process. The fact that the person served ‘got the word’ is

irrelevant. [Citations.] ‘Mere knowledge of the action is not a

substitute for service, nor does it raise any estoppel to contest the

validity of service.’ [Citation.] ‘[O]ur adherence to the law is

required if we are ever to instill respect for it.’ [Citation.] The

Abrams court[7]

felt it could not rewrite the work of the California

Legislature; how much less are we able to rewrite a federal

treaty.” (Honda Motor, supra, 10 Cal.App.4th at pp. 1048–1049,

italics added.)

Where the defendant establishes that he or she has not

been served as mandated by the statutory scheme, “no personal

jurisdiction by the court will have been obtained and the

resulting judgment will be void as violating fundamental due

process. (See Peralta [v. Heights Medical Center, Inc. (1988)]

485 U.S. [80,] 84.)” (Gorham, supra, 186 Cal.App.4th 1215, 1227,

italics added [reversing order denying motion to set aside a

default judgment because plaintiff had not been properly served

with the summons and complaint]; see also Renoir, supra,

123 Cal.App.4th at p. 1154 [“Because no summons was served on

any of the defendants and the defendants did not generally

appear in the proceeding, the trial court had no jurisdiction over

them. Therefore, the California judgment was void, as is the

order denying the motion to vacate the California judgment.”];



7 In re Abrams (1980) 108 Cal.App.3d 685, 695 [annulling

contempt judgment against witness because witness subpoena

had not been personally served as required by statute; “the

process was not served in the manner required by law and

defendant may not be criminally punished for failure to obey the

subpoena.”].)

25

Lee v. An (1008) 168 Cal.App.4th 558, 564 [“[I]f a defendant is not

validly served with a summons and complaint, the court lacks

personal jurisdiction and a . . . judgment in such action is subject

to being set aside as void.”].)8

As we have discussed, SinoType was not served with the

summons and petition in the manner required by the Hague

Service Convention. Accordingly, the court did not acquire

personal jurisdiction over SinoType, and the resulting judgment

was void.

B. SinoType’s Motion to Set Aside the Judgment Was

Timely

The final issue before us is whether the trial court abused

its discretion by failing to set aside the void judgment. SinoType

contends that a void judgment is “void ab initio . . . a nullity” that

may be set aside at any time. Rockefeller Asia disagrees,

contending that “ ‘[o]nce six months have elapsed since the entry

of judgment, a trial court may grant a motion to set aside that

judgment as void only if the judgment was void on its face.’ ”

There is a wealth of California authority for the proposition

that a void judgment is vulnerable to direct or collateral attack

“ ‘ “at any time.” ’ ” (Strathvale Holdings v. E.B.H. (2005)

126 Cal.App.4th 1241, 1249, italics added, quoting People v.

American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)



8 “A lack of fundamental jurisdiction is ‘ “ ‘an entire absence

of power to hear or determine the case, an absence of authority

over the subject matter or the parties.’ [Citation.] . . .” [¶]

. . . “[F]undamental jurisdiction cannot be conferred by waiver,

estoppel, or consent. Rather, an act beyond a court’s jurisdiction

in the fundamental sense is null and void” ab initio.’ ” (Kabran v.

Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339.)

26

For example, in Gorham, supra, 186 Cal.App.4th 1215, the Court

of Appeal held that the failure to vacate a void judgment entered

nearly 10 years earlier was an abuse of discretion. The court

explained: “[W]here it is shown that there has been a complete

failure of service of process upon a defendant, he generally has no

duty to take affirmative action to preserve his right to challenge

the judgment or order even if he later obtains actual knowledge

of it because ‘[w]hat is initially void is ever void and life may not

be breathed into it by lapse of time.’ [Citation.] Consequently

under such circumstances, ‘neither laches nor the ordinary

statutes of limitation may be invoked as a defense’ against an

action or proceeding to vacate such a judgment or order.

[Citation.]” (Id. at p. 1229.)

In so concluding, the court specifically rejected the

proposition that the judgment would be set aside only if void “on

its face”: “Although courts have often also distinguished between

a judgment void on its face, i.e., when the defects appear without

going outside the record or judgment roll, versus a judgment

shown by extrinsic evidence to be invalid for lack of jurisdiction,

the latter is still a void judgment with all the same attributes of a

judgment void on its face. [Citation.] ‘Whether the want of

jurisdiction appears on the face of the judgment or is shown by

evidence aliunde, in either case the judgment is for all purposes a

nullity—past, present and future. [Citation.] “. . . All acts

performed under it and all claims flowing out of it are void . . . .

No action upon the part of the plaintiff, no inaction upon the part

of the defendant, no resulting equity in the hands of third

persons, no power residing in any legislative or other department

of the government, can invest it with any of the elements of

power or of vitality.” [Citation.]’ [Citation.] In such cases, the

27

judgment or order is wholly void, although described as ‘voidable’

because court action is required to determine the voidness as a

matter of law, and is distinguishable from those judgments

merely voidable due to being in excess of the court’s jurisdiction.

[Citation.] Consequently, once proof is made that the judgment is

void based on extrinsic evidence, the judgment is said to be

equally ineffective and unenforceable as if the judgment were void

on its face because it violates constitutional due process. (See

Peralta v. Heights Medical Center, supra, 485 U.S. [at p.] 84.)”

(Gorham, supra, 186 Cal.App.4th at p. 1226, italics added.)9

Similarly, the Court of Appeal in Falahati v. Kondo (2005)

127 Cal.App.4th 823, held that the trial court erred in failing to

grant a motion to set aside a default judgment filed 10 months

after entry of judgment. It explained that although a motion for

relief from a default judgment under Code of Civil Procedure

sections 473, subdivision (b), or 473.5, subdivision (a), usually

must be filed within six months from entry of the judgment, “[a]

void judgment can be attacked at any time by a motion under



9 The Gorham court also rejected the plaintiff’s contention

that the trial court was not required to vacate the judgment

because the defendant had actual knowledge of it: “Knowledge

by a defendant of an action will not satisfy the requirement of

adequate service of a summons and complaint. [Citations.] . . .

[I]t has been said that a judgment of a court lacking such

personal jurisdiction is a violation of due process (Burnham v.

Superior Court of Cal., Marin County (1990) 495 U.S. 604, 609),

and that ‘a default judgment entered against a defendant who

was not served with a summons in the manner prescribed by

statute [to establish personal jurisdiction] is void.’ (Dill v.

Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)”

(Gorham, supra, 186 Cal.App.4th at pp. 1226–1227, 1229.)

28

Code of Civil Procedure section 473, subdivision (d).” (Id. at p.

830, italics added; see also Deutsche Bank National Trust

Company v. Pyle (2017) 13 Cal.App.5th 513, 526; Lee v. An,

supra, 168 Cal.App.4th at pp. 563–564.)

The present case is analogous. Because SinoType was

never properly served with the summons and petition, the trial

court never obtained personal jurisdiction over it. The resulting

judgment—whether or not void on its face—“was . . . therefore

void, not merely voidable, as violating fundamental due process.”

(Gorham, supra, 186 Cal.App.4th at p. 1230.) It therefore could

be set aside “at any time” (People v. American Contractors

Indemnity Co., supra, 33 Cal.4th at p. 660)—including, as in this

case, 15 months after entry of the judgment.10



10 Because we have found the judgment to be void, we do not

address SinoType’s contention that there was no binding

arbitration agreement between the parties. If the parties wish to

do so, they may raise this issue with the trial court in petitions to

confirm/vacate the arbitration award after properly filing and

serving such petitions.

The order denying the motion to set aside the judgment is reversed. The case is remanded to the trial court with directions to vacate the judgment, vacate the order granting the petition to confirm, and quash service of the summons and petition. Appellant’s motion for judicial notice, filed January 2, 2018, is granted as to exhibits 3, 4, and 5, and is otherwise denied. Appellant is awarded its appellate costs.