In a suit arising from a helicopter crash in Colombia, nearly three years after filing their cross-complaint, defendants and cross-complainants amended to name new parties in place of fictitiously named defendants sued in the original cross-complaint. Though the amendment was timely, the cross-complainants failed to serve the new cross-defendants within three years of filing their cross-complaint. Hence, those cross-defendants were entitled to mandatory dismissal of the cross-complaint as against them. Cross-complainants failed to show any basis for an estoppel to plead the mandatory dismissal statute. Cross-complainants were represented by counsel, and a mere delay by the new cross-defendants’ attorney in saying he would not accept service for them was not enough to stop the new cross-defendants from moving for mandatory dismissal. Also, under the Hague Convention, a plaintiff may serve a foreign defendant by mail if the jurisdiction in which defendant resides hasn’t objected to such service and the jurisdiction in which the action is pending authorizes service of foreign defendants by mail. Code of Civil Procedure section 415.30 allows service by mail with an acknowledgment of receipt. Section 415.40 allows service by first class mail, postage prepaid, requiring a return receipt. Service by Fed Ex did not require (and cross-complainants did not produce) any return receipt or other proof that the cross-defendants actually received the summons and complaint. So service by Fed Ex was not affirmatively authorized by the forum state and thus not by the Hague Convention. Cross-complainants also failed to prove service by e-mail as authorized by Colombian law because they never obtained or filed with the court an acknowledgment of receipt of their email service.
California Court of Appeal, Second District, Division Five (Kriegler, J.); February 24, 2018; 2018 WL 1069714.