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". O n 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 Plainti ff 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 " his Convention shall not apply where the address of the person to be served with the document is not known." 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 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 Plainti ff 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), " i f 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 " 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 , 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 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 " ervice by registered or certified mail, return receipt requested is an option in many countries in the world." On the country specific page for Canada , 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. https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 http://travel.state.gov/content/travell / en/legal - considerations/judicial/service-of-process.html http://travel.state.gov/content/travel/en/legal-considerations/judicial/country/canada.html
去年 10月27日，杨文彬诽谤案进行了第一次案件管理会议 。我进入法官的办公室。杨文彬通过电话参加，有一个英语不错的声音开始说话了，我一听以为是杨文彬。正想此人英语不错啊，对方说了，他是杨文彬的翻译。然后 听到一阵含混暴躁的口音，显然这才是杨文彬。 对面的人听到杨这声音眉头一皱，脸上颇有鄙夷的神色。阿门这么个网络流痞让人鄙视、理固当然。但是看到杨如此不济被人鄙夷、给中国人丢脸，我其实也不平。 之前的9月24日（2015），法官裁决说， 加拿大多伦多的被告可以很简单地根据 415.40 条款发传票，也就是通过挂号信发传票 。第二天，我就给杨文彬依律发去挂号信。此次管理会议，法官问杨文彬关于传票的事情，杨文彬说承认通过挂号信收到传票，用英语说了个YES。我看到法官立刻做了笔记。之后，杨文彬那略带暴躁的声音开始哗啦哗啦，法官呼地一下子从椅子上站起来，两手做出制止的手势，连说数声 ”stop"。杨文彬可能还没听见，还在继续。 既然杨已经按照法官的指令发送传票，杨也承认了这一点，案子就继续嘛。杨又发了个动议，说法院对他没有人身管辖权。在动议文件中，杨承认传票已经合法通过挂号信送达，这一点大家都知道，我也就没去论证这个。根据规则 417.20(d)，被告书面承认传票，就算是 proof of svc了。杨文彬在其动议文件中大谈我宣传仇恨日本人、要对日本人施加暴力 （ "preached hatred and violence against Japanese"） ，等等，大事揭发抗日之举。法官是日本裔。 法官对杨文彬无管辖权动议再次拒绝考虑。但他写道：" 原告不得使用加州民事规则给被告发传票，因为州法被海牙公约所抢先。海牙公约条款参见美国国务院网页 “（” Plaintiff is not permitted to employ the methods for serving Defendant under the California Code of Civil Procedure because state law is preempted by the provisions of the Hague Convention. The full text of the applicable provisions of the Hague Convention can be found on the United States Department of State website ( http://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html )." 美国国务院这个网页上其实说了：根据海牙公约 10(a) 条款，很多国家是可以通过挂号信发传票的。具体到加拿大，美国国务院网站写道：“ 加拿大明确允许在海牙公约下使用邮政渠道递交传票 ”： "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. " （ http://travel.state.gov/content/travel/en/legal-considerations/judicial/country/canada.html ） 再加上杨在法庭文件中承认传票送达。 基于法官不是自相矛盾的假设，我提出动议，要求确认杨文彬已经根据海牙公约送达传票。动议见文末附件。我这个动议通过传真通知并发给了杨文彬（另外也发了EMAIL）。早在去年10月，杨文彬就给我发信同意通过传真接收法庭文件。之前杨文彬的动议也是通过传真发给我。针对我这个动议，杨文彬再次强调我这人是抗日的，另外就是些逻辑混乱的反对，我对此予以了驳斥。动议听证时间是 3月9号。 3月7日，法官做了初步裁决，说是我用EMAIL杨文彬发去动议通知，因此动议不予考虑。（打官司，提出动议的人必须给对方发去通知说要动议了，一般是用普通邮件通知，如果对方同意，也可以用传真、EMAIL通知等）。 3月9号，我去法庭听证了。杨文彬这次没有翻译，自己参加。我陈述了一下案件的基本情况，说法院之前说通过挂号信，被告也承认了，现在这个动议是论证挂号信传票是否符合海牙公约。 法官在台上敲着桌子问道：“你是给被告用电子邮件发去动议通知的，是吗？” 我说：“发了传真，也发了邮件。” 这一点，我的文件上写的清清楚楚，通知用传真、电邮都发了，显然法官并没有仔细看。 法官说：“他得书面同意才行。他同意了吗？“ 我说：“是。被告书面同意了。之前被告的动议通知也是通过传真发给我，法庭都予以了考虑。再者，加州最高法院的案例非常明确，当对方对动议提出反对，都不需要看是否给他通知了。” （ It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.... This rule applies even when no notice was given at all. ( City of Pasadena v. Superior Court, 212 Cal. 309, 315 ; Reynolds v. Harris, 14 Cal. 667, 677; Overton v. White, 18 Cal.App.2d 567, 576 .)) 最后，我在法庭上提出了杨文彬企图拿我就日本战争罪行写文章说事，试图不当影响法庭，希望法官明断。 听证回来之后，我又把杨文彬同意用传真接收动议通知的文件以及相关案例发给了法院。 第二天一看，法官完全重复之前的预判，说是我不能用EMAIL给杨发去动议。我法庭上提出的完全等于没说。动议中关于海牙公约送传票的问题当然也就完全没有考虑。 目前为止，案件进行了9个月，杨文彬尚未被法院认可为正式被传，案件尚未进入任何实质阶段，没有对双方任何实质问题进行裁决。杨提出的对他没有管辖权、刘说有言论自由等等，法官根本没有予以考虑。但杨也跑不了。 目前，相关法律措施还是取得了相当的成效。在翰山案中，联邦法院已经认可EMAIL传票，并裁定其缺席。法律的轮子是缓慢的，杨文彬案将会循序渐进的进行。 未来的进展会继续报道。 附件2： 对杨文彬反对书的回应 附件1： 我的动议
今天去加州州法院又进行了一次听证。这是我的一个动议，要求确认杨文彬已经被传。读者可能觉得奇怪，怎么回事？ 去年9月24日，杨文彬案主审法官下令说，加拿大多伦多杨文彬可以很简单的用挂号信发传票。第二天，原告就给杨文彬用挂号信发去传票。之后杨文彬至少在三处认可传票 1）在跟我的电话会议中，这个电话会议根据杨的要求是录音了的； 2）在案件管理会议中，法官明确询问，杨文彬承认被正确发给传票； 3）在杨文彬递交给法院的动议中，他用英文写道（法律文件杨用第三人称he 称自己）： "he was properly served on October 5th, 2015." (Yang's Reply p.7:12-13). 这个"properly"的黑体加粗是杨的原文。 杨文彬的动议是要法院判没有人身管辖权，但他是承认了传票收到的，对传票送达没有异议。结果，法官说传票没有送达。我只好动议，把这个事情理清楚。 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。但杨文彬以及刘牧野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的论文翻译附上，而是用他们自己的语言进行歪曲性描述。 今天在法庭上，我提出了这个问题，我对法官说道，被告在法庭文件上大量提到我就二次世界大战以及日本战争罪行写作的文章 (Defendants made an issue of my writings on the Second World War and Japanese war crimes. ) ，明显试图不当的影响法院。请法官就此问题作出判断。 杨文彬诽谤案的主审法官是日本裔。
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