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PINNOCK WAKEFIELD

VIEWS: 1 PAGES: 17

									                             California Courts Of Appeal
                              4th District Court of Appeal
                        ===============================
                                NO.________________
                       =================================

                            Theodore Arthur Pinnock
                                   Petitioner,
                                       vs.
                       Superior Court of San Diego County
                                  Respondent,
                                   Noni Gotti
                              Real Party In Interest.
                     =============================
  ON PETITION FOR WRIT OF MANDATE FROM THE SAN DIEGO SUPERIOR COURT
                    Hon. Ronald S. Prager, Department: C-71
                  ===================================

                       STAY REQUESTED FOR THE CASE OF
 NONI GOTTI v. THEODORE A. PINNOCK, ET. AL. AND DOES 1 THROUGH 10, Inclusive,
                    Case No.: 37-2010-00104874-CU-FR-CTL,

 ====================================================================
    PETITION FOR WRIT OF MANDATE AND ACCOMPANYING MEMORANDUM
 ====================================================================


THEODORE ARTHUR PINNOCK
Blk 4 Lot 10 Phase 4
Carmona Estates
Carmona
4116 Cavite PHILIPPINES
Telephone: 858.206.7931
Facsimile: 619.923.2913

Petitioner In Pro Se




                                        1
                                                      TABLE OF CONTENTS




I. PETITION ...................................................................................................................................1
  A. WHY SHOULD A WRIT OF MANDATE BE ISSUED ......................................................................1
  B. FACTS ........................................................................................................................................1
  C. REQUEST ....................................................................................................................................1

II. ACCOMPANYING MEMORANDUM A. INTRODUCTION.............................................2
  B. HAGUE SERVICE CONVENTION ..................................................................................................3
  C. THE PHILIPPINE CODE OF CIVIL PROCEDURE AND LETTERS ROGATORY PROVIDE THE
  INTERNAL LAW FOR SERVICE OF PROCESS, THEREFORE, THE HAGUE SERVICE CONVENTION
  APPLIES.............................................................................................................................................5
  D. A PRIVATE POSTAL BOX CANNOT BE AN AGENT FOR SERVICE OF PROCESS IN THE INSTANT
  CASE UNDER VOLKSWAGENWERK HOLDINGS OF THE UNITED STATES SUPREME COURT .............12
  E. REQUEST ..................................................................................................................................12

VERIFICATION .............................................................................................................................14




                                                   TABLE OF AUTHORITIES




                                                                      CASES

Bankston v. Toyota Motor Corp. (8th Cir. 1989) 889 F.2d 172, 173.) ----------------------------------- 3
CCP § 415.20 ----------------------------------------------------------------------------------------------------- 5
Eto v. Muranaka, 57 P.3d 413, 420 (Haw. 2002) ------------------------------------------------------------ 6
Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789 , 794 [69 Cal. Rptr. 2d
  457].) ------------------------------------------------------------------------------------------------------------ 7
Hearn v. Howard (2009) 177 Cal.App.4th 1193 ------------------------------------------------------------ 12
Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043 , 1048 [12 Cal. Rptr. 2d 861].) -- 7

                                                                          i
Porsche A.G. v. Superior Court (1981) 123 Cal.App.3d 755 , 760 [177 Cal.Rptr. 155];-------------- 3
Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S. 522, 534 n.15, 107 S. Ct.
  2542, 2550 n.15, 96 L. Ed. 2d 461, 478 n.15 (1987)). --------------------------------------------------- 4
United States v. Pink (1942) 315 U.S. 203, 230, 234 [86 L.Ed. 796, 817-818, 820, 62 S.Ct. 552].) 3

                                              OTHER AUTHORITIES

The Challenge of Accession, The Philippine Perspective on the Service Convention 4th Hague
  Conference on Private International Law Track 1 – Legal Cooperation and Litigation October
  26, 2011, Makati City, Philippines, By: Roberto A. Abad, Associate Justice Supreme Court of the
  Philippines. ----------------------------------------------------------------------------------------------------- 6

                                                      RULES

CCP § 413.10 ----------------------------------------------------------------------------------------------------- 3
Fed.R.Civ.P. 4, note, at 130 (West Supp. 1989) ------------------------------------------------------------- 2
Rule 13 of the Philippine Rules of Civil Procedure --------------------------------------------------------- 7
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S. Ct. 2104, 2107, 100 L.
  Ed. 2d 722, 730 (1988). --------------------------------------------------------------------------------------- 4

                                                     TREATY

Hague Convention preamble, 20 U.S.T. 361, 362, T.I.A.S. No. 6638, reprinted in 28 U.S.C.A ----- 2

                                                  REGULATIONS

[Code of Federal Regulations[Title 22, Volume 1], [Revised as of April 1, 2002], TITLE 22--
  FOREIGN RELATIONS,                            CHAPTER I--DEPARTMENT OF STATE PART 93 -- 10

                                         CONSTITUTIONAL PROVISIONS

U.S. Const., Art. VI, § 2----------------------------------------------------------------------------------------- 6




                                                         ii
I.     PETITION

       A.      Why Should A Writ Of Mandate Be Issued
       This is a petition for writ of mandate authorized by Code of Civil Procedure section 418.10,

subdivision (c), seeking to reverse the trial court order refusing to quash service of summons on

Defendant and Petitioner. The issue in this writ is as follows:

       Is it sufficient for Respondent to serve Petitioner with a Summons and First Amended
       Complaint through substitute service at an address used in the State Bar Membership
       Records within the State rendering the Hague Service Convention and Letters Rogatory or
       Philippine internal law inapplicable when Petitioner resided outside the United States or
       must Respondent serve Petitioner pursuant to the Hague Service Convention and Letters
       Rogatory or Philippine internal law and not pursuant to California's substitute service rules?
B.     Facts
       Since September 11, 2009, Petitioner has resided outside United States. The case below
was filed on November 24, 2010. Respondent mailed her first amended complaint, alleging fraud
and malpractice, and summons to 712 Bancroft Rd. #419, Walnut Creek, CA 94598 on March 28,
2011. The court granted the Petitioner’s First Motion to Quash. On September 2, 2011
Respondent properly executed substituted service at the same address, which is a Private Office
Box Petitioner used as his business address and for State Bar member records purposes. Petitioner
filed a Second Motion to Quash because Respondent failed to comply with the Hague Service
Convention. On January 20, 2012 the trial court denied the motion.
C.     Request
       Petitioner request this Court reverse the trial court’s January 20, 2012 ruling because the
Letters Rogatory or Philippine internal law and the Hague Service Convention applies in the instant
case. The State of California is bound by all treaties and conventions when the United States is a
signatory thereto. The trial court ruled that the Hague Service Convention does apply to the case at
bench because California's substitute service rules were complied with. It is urgent this Court
ensure California complies the Hague Service Convention before requiring a foreign resident to
appear in the courts of California. The entire case should be stayed to avoid violation of due
process and prejudice to Petitioner or to the other defendants involved in the case below. Petitioner
is an indispensable party in the case below thus he will be prejudice if the case below proceeded

                                                  1
while this Writ is being adjudicated.
       The Hague Service Convention 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.

1989) [hereafter sometimes referred to as Treaty].) 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 Treaty, 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 Treaty. (Treaty, art. 21.) The

Treaty, an international treaty, controls the issue. (Dr. Ing H.C.F. Porsche A.G. v. Superior Court

(1981) 123 Cal.App.3d 755 , 760 [177 Cal.Rptr. 155]; United States v. Pink (1942) 315 U.S. 203,

230, 234 [86 L.Ed. 796, 817-818, 820, 62 S.Ct. 552].)

II.    ACCOMPANYING MEMORANDUM
       A.      Introduction

       This case is a matter of first impression. The State of California is bound by all treaties and
conventions when the United States is a signatory thereto. The trial court ruled that the Hague
Service Convention does apply to the case at bench because California's substitute service rules
were complied with. The Hague Convention 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.
1989) [hereafter sometimes referred to as Treaty].) 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

                                                    2
permitted by the internal law of the country where the service is made. (See Treaty, 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 Treaty. (Treaty, art. 21.) The
Treaty, an international treaty, controls the issue. (Dr. Ing H.C.F. Porsche A.G. v. Superior Court
(1981) 123 Cal.App.3d 755 , 760 [177 Cal.Rptr. 155]; United States v. Pink (1942) 315 U.S. 203,
230, 234 [86 L.Ed. 796, 817-818, 820, 62 S.Ct. 552].)

       B.      Hague Service Convention

       The California Code of Civil Procedures recognizes service by a letter rogatory or by
internal law of the Philippines. CCP § 413.10 states:

       (c) Outside the United States, as provided in this chapter or as directed by the court in
       which the action is pending, or, if the court before or after service finds that the service is
       reasonably calculated to give actual notice, as prescribed by the law of the place where the
       person is served or as directed by the foreign authority in response to a letter rogatory.
       These rules are subject to the provisions of the Convention on the "Service Abroad of
       Judicial and Extrajudicial Documents" in Civil or Commercial Matters (Hague Service
       Convention).

       The Hague Service Convention is a multilateral treaty that was formed in 1964 at the Hague
Conference of Private International Law. The Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters (Concluded November 15, 1965, in
relevant part, states:

       Article 1

       The present Convention shall apply in all cases, in civil or commercial matters, where there
       is occasion to transmit a judicial or extrajudicial document for service abroad. This
       Convention shall not apply where the address of the person to be served with the document
       is not known.

       Article 10

       Provided the State of destination does not object, the present Convention shall not interfere
       with –

       a) the freedom to send judicial documents, by postal channels, directly to persons abroad,



                                                    3
       b) the freedom of judicial officers, officials or other competent persons of the State of
       origin to effect service of judicial documents directly through the judicial officers, officials
       or other competent persons of the State of destination,

       c) the freedom of any person interested in a judicial proceeding to effect service of judicial
       documents directly through the judicial officers, officials or other competent persons of the
       State of destination.

       Article 14

       Difficulties which may arise in connection with the transmission of judicial documents for
       service shall be settled through diplomatic channels.

       Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S. Ct. 2104, 2107,
       100 L. Ed. 2d 722, 730 (1988).

       The Hague Service Convention was intended to revise parts of the Hague Convention
Treaties on Civil Procedure from 1905 and 1954. Id.; Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 [1969], 20
U.S.T. 361, T.I.A.S. No. 6638. The revisions were intended to simplify the service of process
abroad so as to insure that judicial and extrajudicial documents to be served abroad are brought to
the notice of the addressee in sufficient time, and to make available one method of service that will
avoid the difficulties and controversy attendant to the use of other methods. Marjorie A. Shields,
Annotation, When Is Compliance with Hague Convention on Service Abroad of Judicial and
Extrajudicial Documents in Civil and Commercial Matters, Art. 1 et seq., Required, 18 A.L.R. Fed.
2d 185, 197 (2007). Volkswagenwerk, 486 U.S. at 698, 108 S. Ct. at 2107, 100 L. Ed. 2d at 730.

       The scope of the Convention is defined by Article 1. Id. at 699, 108 S. Ct. at 2108, 100 L.
Ed. 2d at 730. It states: “The present Convention shall apply in all cases, in civil or commercial
matters, where there is occasion to transmit a judicial or extrajudicial document for service
abroad.” Hague Service Convention art.1, 20 U.S.T. at 362. The United States Supreme Court has
declared that this language is mandatory. Volkswagenwerk, 486 U.S. at 699, 108 S. Ct. at 2108,
100 L. Ed. 2d at 730 (citing Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S.
522, 534 n.15, 107 S. Ct. 2542, 2550 n.15, 96 L. Ed. 2d 461, 478 n.15 (1987)). “By virtue of the
Supremacy Clause, U.S. Const. Art. VI, the Convention pre-empts inconsistent methods of service
prescribed by state law in all cases to which it applies.” Id.


                                                    4
       C.      The Philippine Code Of Civil Procedure and Letters Rogatory Provide The
               Internal Law For Service Of Process, Therefore, The Hague Service
               Convention Applies

       The issue in this case is to determine whether the Convention or the California Code of
Civil Procedure section 415.20 applies. CCP § 415.20 states:

       (a) In lieu of personal delivery of a copy of the summons and of the complaint to the
       person to be served as specified in Section 416.10, 416.20, 416. 30, 416.40, or
       416.50, a summons may be served by leaving a copy of the summons and of the
       complaint during usual office hours in his or her office with the person who is
       apparently in charge thereof, and by thereafter mailing a copy of the summons and
       of the complaint (by first-class mail, postage prepaid) to the person to be served at
       the place where a copy of the summons and of the complaint were left. Service of a
       summons in this manner is deemed complete on the 10th day after such mailing.

       (b) If a copy of the summons and of the complaint cannot with reasonable diligence be
       personally delivered to the person to be served as specified in Section 416.60, 416.70,
       416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the
       complaint at such person's dwelling house, usual place of abode, usual place of business, or
       usual mailing address other than a United States Postal Service post office box, in the
       presence of a competent member of the household or a person apparently in charge of his or
       her office, place of business, or usual mailing address other than a United States Postal
       Service post office box, at least 18 years of age, who shall be informed of the contents
       thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-
       class mail, postage prepaid) to the person to be served at the place where a copy of the
       summons and of the complaint were left. Service of a summons in this manner is deemed
       complete on the 10th day after the mailing.


       The trial court reasoned that the Hague Service Convention does not apply to the case
because the Petitioner’s local business address was sufficient to subject him to valid substitute
service. The trial court erred in both its interpretation of the controlling case law and its application
of the Rule of Civil Procedure.
       The Supreme Court decision in Volkswagenwerk holds that American plaintiffs need not
serve foreign defendants at locations abroad if the law of the forum state allows for plaintiffs to
serve the defendant’s domestic agent within the United States. Volkswagenwerk, 486 U.S. at 707,
108 S. Ct. at 2112, 100 L. Ed. 2d at 735–36. Volkswagenwerk concerned a wrongful death action
brought against Volkswagen of America, Inc. Id. at 696, 108 S. Ct. at 2106, 100 L. Ed. 2d at 728–
29. In Volkswagenwerk, the plaintiff successfully served Volkswagen of America, but Volkswagen

                                                    5
of America denied it had designed or assembled the automobile at issue. Id. The plaintiff amended
the complaint to include Volkswagen Aktiengesellschaft, Volkswagen of America’s German parent
company. Id. The plaintiff then served Volkswagen Aktiengesellschaft by serving Volkswagen of
America as its agent. Id. at 697, 108 S. Ct. at 2106, 100 L. Ed. 2d at 729. Illinois, the state where
Volkswagen of America was registered to do business, has a long-arm statute that authorizes
plaintiffs to serve foreign defendants by substituted service on their domestic agents. Id. at 706,
108 S. Ct. at 2111–12, 100 L. Ed. 2d at 735. The Court determined that the Illinois long-arm statute
provided “ ‘notice reasonably calculated, under all the circumstances, to appraise interested parties
of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. at
707, 108 S. Ct. at 2112, 100 L. Ed. 2d at 735 (quoting Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)). The Court also determined
that Volkswagen of America was the domestic agent of Volkswagen Aktiengesellschaft. Id.
Because the Court determined that service on a domestic agent is valid and service abroad was not
required, the Court held that the Hague Service Convention did not apply. Id.
        The Supremacy Clause establishes the United States Constitution, federal statutes, and U.S.
treaties as “the supreme Law of the Land.” U.S. Const., Art. VI, § 2. The United States has ratified
the Hague Service Convention. Volkswagenwerk, 486 U.S. at 698, 108 S. Ct. at 2107, 100 L. Ed.
2d at 730. It is the supreme law of the land and pre-empts any inconsistent service methods allowed
by state law. Id. at 699, 108 S. Ct. at 2108, 100 L. Ed. 2d at 730. California Rules of Civil
Procedure do not trump the Hague Service Convention and allow Petitioner be personally served at
his business address in Walnut Creek, California where he sued as an individual capacity and he
resides in Philippines when the Convention requires that he be served through the Philippine
internal service rules.1 See Eto v. Muranaka, 57 P.3d 413, 420 (Haw. 2002) (“It is evident, then,
that Hawai‘i law cannot override the Hague Convention, when the Convention applies.”). The trial
court erred in determining the Hague Service Convention did not apply in this case.
        The Hague Service Convention was "intended to provide a simpler way to serve process
abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely
        1
          The Philippines is not a signatory to the Convention. After nearly 46 years since the Tenth Session in Hague
adopted the Service Convention, the Philippines is finally undergoing the process of accession. The Challenge of
Accession, The Philippine Perspective on the Service Convention 4th Hague Conference on Private International Law
Track 1 – Legal Cooperation and Litigation October 26, 2011, Makati City, Philippines, By: Roberto A. Abad,
Associate Justice Supreme Court of the Philippines. However, the State of California is bound by all treaties and
conventions when the United States is a signatory thereto. United States v. Pink (1942) 315 U.S. 203, 230, 234 [86
L.Ed. 796, 817-818, 820, 62 S.Ct. 552].)

                                                          6
notice of suit, and to facilitate proof of service abroad." If the internal law of the forum state
defines the applicable method of serving process as requiring the transmittal of documents abroad,
then the Hague Service Convention applies. (Volkswagenwerk Aktiengesellschaft v. Schlunk
(1988) 486 U.S. 694, 698 [100 L. Ed. 2d 722, 108 S. Ct. 2104].) [3] It applies "in all cases, in civil
or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for
service abroad." ( Id. at p. 699; Hague Service Convention, supra , 20 U.S.T. 361, Art. 1.) Failure
to properly serve a party who resides outside the country under the Hague Service Convention
renders all subsequent proceedings void as to that person. Honda Motor Co. v. Superior Court
(1992) 10 Cal.App.4th 1043 , 1048 [12 Cal. Rptr. 2d 861].) This is true even when the party
indisputably had notice of the action. ( Id. at p. 1049; Floveyor International, Ltd. v. Superior
Court (1997) 59 Cal.App.4th 789 , 794 [69 Cal. Rptr. 2d 457].)
       Petitioner Pinnock resides in Carmona, Cavite in the Philippines – his dwelling house and
usual place of abode. Pinnock moved to Carmona on September 11, 2009. Further, Pinnock is a
resident of the Philippines. Pinnock maintains a Private Postal Box in Walnut Creek, which he
actually visited only once. The first question is does the Philippines have a internal law for service.
Service of process in the Philippines can be accomplished by a variety of methods:

           1. Direct Service by a Philippine Process Server: Rule 13 of the Philippine Rules of

               Civil Procedure provide that process servers, sheriffs of each Philippine province

               and their deputies, as well as other offices of the Philippine court such as attorneys,

               may effect service. Rule 13 states:

                       Section 1. Coverage. — This Rule shall govern the filing of all pleadings
                       and other papers, as well as the service thereof, except those for which a
                       different mode of service is prescribed. (n)


                       Section 2. Filing and service, defined. — Filing is the act of presenting the
                       pleading or other paper to the clerk of court.

                       Service is the act of providing a party with a copy of the pleading or paper
                       concerned. If any party has appeared by counsel, service upon him shall be
                       made upon his counsel or one of them, unless service upon the party himself
                       is ordered by the court. Where one counsel appears for several parties, he
                       shall only be entitled to one copy of any paper served upon him by the
                       opposite side. (2a)

                                                    7
Section 3. Manner of filing. — The filing of pleadings, appearances,
motions, notices, orders, judgments and all other papers shall be made by
presenting the original copies thereof, plainly indicated as such, personally
to the clerk of court or by sending them by registered mail. In the first case,
the clerk of court shall endorse on the pleading the date and hour of filing. In
the second case, the date of the mailing of motions, pleadings, or any other
papers or payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of their
filing, payment, or deposit in court. The envelope shall be attached to the
record of the case. (1a)

Section 4. Papers required to be filed and served. — Every judgment,
resolution, order, pleading subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment or similar papers shall be
filed with the court, and served upon the parties affected. (2a)

Section 5. Modes of service. — Service of pleadings motions, notices,
orders, judgments and other papers shall be made either personally or by
mail. (3a)

Section 6. Personal service. — Service of the papers may be made by
delivering personally a copy to the party or his counsel, or by leaving it in
his office with his clerk or with a person having charge thereof. If no person
is found in his office, or his office is not known, or he has no office, then by
leaving the copy, between the hours of eight in the morning and six in the
evening, at the party's or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein. (4a)

Section 7. Service by mail. — Service by registered mail shall be made by
depositing the copy in the post office in a sealed envelope, plainly addressed
to the party or his counsel at his office, if known, otherwise at his residence,
if known, with postage fully prepaid, and with instructions to the postmaster
to return the mail to the sender after ten (10) days if undelivered. If no
registry service is available in the locality of either the senders or the
addressee, service may be done by ordinary mail. (5a; Bar Matter No. 803,
17 February 1998)

Section 8. Substituted service. — If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two preceding
sections, the office and place of residence of the party or his counsel being
unknown, service may be made by delivering the copy to the clerk of court,
with proof of failure of both personal service and service by mail. The
service is complete at the time of such delivery. (6a)

Section 9. Service of judgments, final orders, or resolutions. — Judgments,
final orders or resolutions shall be served either personally or by registered
mail. When a party summoned by publication has failed to appear in the

                           8
action, judgments, final orders or resolutions against him shall be served
upon him also by publication at the expense of the prevailing party. (7a)

Section 10. Completeness of service. — Personal service is complete upon
actual delivery. Service by ordinary mail is complete upon the expiration of
ten (10) days after mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the addressee, or after five
(5) days from the date he received the first notice of the postmaster,
whichever date is earlier. (8a)

Section 11. Priorities in modes of service and filing. — Whenever
practicable, the service and filing of pleadings and other papers shall be done
personally. Except with respect to papers emanating from the court, a resort
to other modes must be accompanied by a written explanation why the
service or filing was not done personally. A violation of this Rule may be
cause to consider the paper as not filed. (n)

Section 12. Proof of filing. — The filing of a pleading or paper shall be
proved by its existence in the record of the case. If it is not in the record, but
is claimed to have been filed personally, the filing shall be proved by the
written or stamped acknowledgment of its filing by the clerk of court on a
copy of the same; if filed by registered mail, by the registry receipt and by
the affidavit of the person who did the mailing, containing a full statement of
the date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and with
instructions to the postmaster to return the mail to the sender after ten (10)
days if not delivered. (n)

Section 13. Proof of Service. — Proof of personal service shall consist of a
written admission of the party served, or the official return of the server, or
the affidavit of the party serving, containing a full statement of the date,
place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing
compliance with section 7 of this Rule. If service is made by registered mail,
proof shall be made by such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed letter together with the
certified or sworn copy of the notice given by the postmaster to the
addressee. (10a)

Section 14. Notice of lis pendens. — In an action affecting the title or the
right of possession of real property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may record in the office of the
registry of deeds of the province in which the property is situated notice of
the pendency of the action. Said notice shall contain the names of the parties
and the object of the action or defense, and a description of the property in
that province affected thereby. Only from the time of filing such notice for

                            9
                           record shall a purchaser, or encumbrancer of the property affected thereby,
                           be deemed to have constructive notice of the pendency of the action, and
                           only of its pendency against the parties designated by their real names.

                           The notice of lis pendens hereinabove mentioned may be cancelled only
                           upon order of the court, after proper showing that the notice is for the
                           purpose of molesting the adverse party, or that it is not necessary to protect
                           the rights of the rights of the party who caused it to be recorded. (24a, R-14)



             2. Letters Rogatory.2 [Code of Federal Regulations[Title 22, Volume 1], [Revised as

                  of April 1, 2002], TITLE 22--FOREIGN RELATIONS, CHAPTER I--

                  DEPARTMENT OF STATE PART 93--SERVICE ON FOREIGN STATE--


                  Sec. 93.2 Notice of suit (or of default judgment).

                     (a) A Notice of Suit prescribed in section 1608(a) of title 28,
                  United States Code, shall be prepared in the form that appears in the
                  Annex to this section.
                     (b) In preparing a Notice of Suit, a party shall in every instance
                  supply the information specified in items 1 through 5 of the form
                  appearing in the Annex to this section. A party shall also supply
                  information specified in item 6, if notice of a default judgment is
                  being served.
                     (c) In supplying the information specified in item 5, a party shall
                  in simplified language summarize the nature and purpose of the
                  proceeding (including principal allegations and claimed bases of
                  liability), the reasons why the foreign state or political subdivision
                  has been named as a party in the proceeding, and the nature and amount
                  of relief sought. The purpose of item 5 is to enable foreign officials
                  unfamiliar with American legal documents to ascertain the above

2
    TITLE 22--FOREIGN RELATIONS, CHAPTER I--DEPARTMENT OF STATE

PART 92_NOTARIAL AND RELATED SERVICES--Sec. 92.54 ``Letters rogatory'' defined.
   In its broader sense in international practice, the term letters rogatory denotes a formal request from a court in which
an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence,
the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. In United States sage,
letters rogatory have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon
the comity of courts toward each other, and customarily embody a promise of reciprocity. The legal sufficiency of
documents executed in foreign countries for use in judicial proceedings in the United States, and the validity of the
execution, are matters for determination by the competent judicial authorities of the American jurisdiction where the
proceedings are held, subject to the applicable laws of that jurisdiction.



                                                            10
information.
   (d) A party may attach additional pages to the Notice of Suit to
complete information under any item.
   (e) A party shall attach, as part of the Notice of Suit, a copy of
the Foreign State Immunities Act of 1976 (Pub. L. 94-583; 90 Stat.
2891).

                         Annex

           Notice of Suit (or of Default Judgment \1\)
---------------------------------------------------------------------------

   \1\ Relevant only if items 4 and 6 indicate that a default judgment
has occurred.
---------------------------------------------------------------------------

  1. Title of legal proceeding; full name of court; case or docket
number.
  2. Name of foreign state (or political subdivision) concerned:
  3. Identity of the other Parties:

                    Judicial Documents

   4. Nature of documents served (e.g., Summons and Complaint; Default
Judgment):
   5. Nature and purpose of the proceedings; why the foreign state (or
political subdivision) has been named; relief requested:
   6. Date of default judgment (if any):
   7. A response to a ``Summons'' and ``Complaint'' is required to be
submitted to the court, not later than 60 days after these documents are
received. The response may present jurisdictional defenses (including
defenses relating to state immunity).
   8. The failure to submit a timely response with the court can result
in a Default Judgment and a request for execution to satisfy the
judgment. If a default judgment has been entered, a procedure may be
available to vacate or open that judgment.
   9. Questions relating to state immunities and to the jurisdiction of
United States courts over foreign states are governed by the Foreign
Sovereign Immunities Act of 1976, which appears in sections 1330,
1391(f), 1441(d), and 1602 through 1611, of Title 28, United States Code
(Pub. L. 94-583; 90 Stat. 2891).

(Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583
(28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658))

[42 FR 6367, Feb. 2, 1977]

                                        11
        Based on the Letters Rogatory and section 13 of the Philippine Code of Civil Procedure,
there is an internal law in the Philippines the Respondent can follow to effectuate service.
Therefore, the Hague Service Convention applies here.

        D.       A Private Postal Box Cannot Be An Agent For Service Of Process In The
                 Instant Case Under Volkswagenwerk Holdings Of The United States Supreme
                 Court

        The second key issue in this case is does a private postal box act as an agent for Pinnock
under Volkswagenwerk, 486 U.S. at 699, 108 S. Ct. at 2108, 100 L. Ed. 2d at 730 (citing Société
Nationale Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S. 522, 534 n.15, 107 S. Ct. 2542, 2550
n.15, 96 L. Ed. 2d 461, 478 n.15 (1987)). Here, service was not on a domestic agent of Pinnock
because Pinnock is not a corporation under state law and the Convention has implications.

        Respondent’s reliance on Hearn v. Howard (2009) 177 Cal.App.4th 1193 is misplaced. In
Hearn, according to a declaration of due diligence submitted by registered California process server
Isaac Villarreal, he made three attempts to personally serve appellant on July 27, July 30 and
August 2, 2007. The proof of service there satisfied these requirements. In Hearn, Villarreal
attempted to personally serve appellant at the business address on her letterhead and reported by
the California State Bar by appearing at that address on three separate occasions on three different
days. The business address was not an office, but rather, a private post office box rental store.
During the third attempt, Villarreal left the documents with the mail store clerk. He thereafter
mailed the documents to the same address by first class, postage prepaid mail. Here, the facts are
different because Pinnock resided outside the United States. Hearn never addressed the case where
a person maintains a private business postal box within the United States but resides outsides the
United States.

E.      Request
        Petitioner request this Court reverse the trial court’s January 20, 2012 ruling because the

Letters Rogatory or Philippine internal law and the Hague Service Convention applies in the instant

case.

Respectfully Submitted,


                                                  12
Date:



             Theodore A. Pinnock




        13
VERIFICATION
        The undersigned Petitioner verifies the PETITION FOR WRIT OF MANDATE AND
ACCOMPANYING MEMORANDUM uses1.5 lines spacing with Times New Roman 12 point
font and uses 4,935 words. The undersigned verifies a true and correct copy of the following are
attached:
(A)     The ruling from which the petition seeks relief;
(B)     All documents and exhibits submitted to the trial court supporting and opposing the
petitioner's position;
(C)     Any other documents or portions of documents submitted to the trial court that are
necessary for a complete understanding of the case and the ruling under review; and
(D)     A reporter's transcript of the oral proceedings that resulted in the ruling under review.




Respectfully Submitted,



Date:



                                                                                 Theodore A. Pinnock




                                                  14

								
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