To Hague or not to Hague

An overview of serving a foreign defendant and establishing jurisdiction in California to avoid Hague Convention service

2025 December

In the ever-growing globalized markets, there are many products sold and/or serviced in the U.S. by a U.S. business that were designed and/or manufactured by a foreign affiliate/parent entity. Despite the recent tensions in international trade, these modern tendencies are unlikely to change dramatically in the coming years. There are millions of products already in the U.S. marketplace that have non-U.S. origin of design and/or manufacture. Eventually, trade disputes will ease up and foreign products will continue to flow to the U.S.

As one of the largest economies of the world, California remains an attractive market for many global manufacturers. Many global businesses cater to California consumers through a California or U.S. subsidiary, and targeted marketing campaigns, making California one of their most profitable markets. So, how can a person injured in California by a product with a foreign origin seek civil justice against a foreign manufacturer/parent entity? An initial and necessary step is ‘joining the defendant’ to the suit – and that means serving the defendant and establishing jurisdiction against it. This article provides an overview of serving a foreign defendant and establishing jurisdiction in California.

Service

Global product manufacturers often operate and distribute their product through an intricate web of subsidiary and affiliated companies to maximize their market share, and to avoid liability by pretending each subsidiary/affiliate is separate and distinct from the manufacturer. In reality, they are often joined “at the hip” and merely operate as different departments of one global entity.

These elaborate schemes create major hurdles for California plaintiffs trying to hold foreign manufacturers liable for their defective products, designed and manufactured internationally, and distributed in California through their U.S. subsidiaries. While one can just sue the U.S. distributor under the “stream of commerce” doctrine, it often becomes necessary (and certainly beneficial) to have the designer/manufacturer of the product in the case.

Serving foreign entities through their U.S. subsidiary

Going through the procedural and financial hurdles to serve a foreign manufacturer through a multilateral treaty or convention, such as the Hague Service Convention, can often deter plaintiffs from pursuing a case against such defendants. But there is another path. Plaintiffs may be able to effectuate service on foreign manufacturers/companies through their U.S. subsidiary. To do so, one must allege that the U.S. subsidiary is the foreign corporation’s general manager or agent of service (even involuntarily so) in California.

This path is addressed in Yamaha Motor Co., Ltd. v. Superior Court (2009) 174 Cal.App.4th 264 and Cosper v. Smith & Wesson Arms Co. (1959) 53 Cal.2d 77. Those cases have established that California law allows for “proper service of ‘process on a foreign corporation by serving its domestic subsidiary which, under state law, is the foreign corporation’s involuntary agent for service of process.’” (Yamaha, 174 Cal.App.4th at p. 271.)

The Yamaha Court held that, “there was no need to serve papers abroad under the procedures of the Hague Service Convention” if the local subsidiary was properly served. (Id., 174 Cal.App.4th 264.) The court reasoned, “that ‘subject to [Hague Convention] does not mean ‘pursuant to the rules of’ [and,] [i]f the Legislature wanted all service on foreign nationals to be pursuant to the procedures of the Hague Service, it could have said so.” (Id. at 271.)

Despite the deep entanglement between many foreign manufacturers and their U.S. subsidiaries, when served on behalf of each other, such manufacturers generally argue that the connection is not close enough for the U.S. entity to be deemed the “general manager in California.” However, the Yamaha court did not adopt the language or the requirement that service must be made through an actual designated “general manager in this state” (Id., at 272.) In fact, the court called this a “non-issue,” holding that, “…under section 416.10 of the Code of Civil Procedure […], a summons may be served on a corporation, ‘by delivering a copy of the summons and the complaint’ to ‘the person designated as agent for service of process…’” (Id., at 272.)

Cosper and service on a sales representative

Relying on Cosper, the Yamaha court held that “[i]f it was reasonably certain that a relatively casual sporting goods representative would apprise the ‘foreign’ manufacturer of service in Cosper, it is doubly reasonably certain Yamaha-America will apprise Yamaha-Japan of any service in California.” (Id., 174 Cal.App.4th 264, 274.)

Cosper is a California Supreme Court decision. The Cosper court held that service on a sales representative was valid service on a foreign corporation because the sales representative had “ample regular contact” such that it was “reasonably certain” that the representative would apprise the manufacturer of the service. (Cosper, 53 Cal.2d at pp. 83-84.) Similarly, the Yamaha court reasoned “the relationship between the manufacturer’s representative and the manufacturer in Cosper was far less intimate, far less connected, and far less interrelated than the relationship between Yamaha–America and Yamaha–Japan in the case before us.” (Id., 174 Cal.App.4th at p. 274.)

In modern reality the entanglement between global manufacturers and their affiliates is much deeper and stronger than merely “apprising each other of service of process.” In denying the Yamaha-Japan’s motion to quash service, the Yamaha court considered multiple factors – including information obtained from Yamaha–Japan’s public filings:

Yamaha–America is Yamaha-Japan’s wholly owned domestic subsidiary in the United States. Yamaha-America’s principal business is to act as the exclusive importer and distributor of Yamaha vehicles […]. Yamaha-America provides the warranty and owner manuals for Yamaha vehicles. Yamaha- America conducts testing, including suitability testing, for Yamaha vehicles. Yamaha–America provides marketing for Yamaha vehicles and receives all customer complaints and accident reports for the United States involving Yamaha vehicles. Finally, Yamaha-Japan’s […] annual report describes Yamaha–America as Yamaha-Japan’s ‘Regional Headquarters for North America.’

(Yamaha, 174 Cal.App.4th at p. 268.)

This degree of entanglement is not unique to Yamaha-Japan and Yamaha- America. Many global manufacturers operate under similar schemes with a U.S.-based affiliate or subsidiary.

Conducting discovery to satisfy the Yamaha factors

Often, U.S. companies that are part of a larger, global enterprise are wholly or majority-owned subsidiaries of a foreign manufacturer. The foreign company will frequently have a U.S. company act as the exclusive importer and distributor of the foreign manufacturer’s products and services in the U.S. and/or provide exclusive warranty/service for the foreign manufacturer’s products. In fact, the U.S. entities often create and develop the U.S. market for their foreign affiliate through targeted marketing campaigns, including presentations at industry trade shows, trade schools, executive level business development with U.S. clients. As in Yamaha, U.S. subsidiaries receive customer feedback, accident reports, and consumer data from the U.S. market. Often, “but for” the U.S. subsidiary, the foreign manufacturer would not be in the in the U.S. market.

Conducting jurisdictional discovery

As soon as the international manufacturers serve a motion to quash, plaintiff should notice the deposition(s) of the motion declarant(s) as well as PMK/PMQ depositions on issues of corporate governance, governing documents, joint regulations or articles of incorporation (outlining the nature and extent of their relationship), agreements/MOUs for various joint ventures, research, development and other joint efforts for the advancement of unifying cause and profit.

A plaintiff attempting to assert jurisdiction over a nonresident manufacturer is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127; see also Mihlon v. Superior Court (1985) 169 Cal.App.3d 703.) A plaintiff is entitled to depose the declarants to the motion who submits an affidavit against jurisdiction through their declaration. This request is supported by Evidence Code section 702. Plaintiff is entitled to probe the foundation and the veracity of such declarants, because, “[o]f course, in an affidavit, the affiant states only those facts that support his contentions, but in a deposition his opponent may inquire into further facts not volunteered by the witness. […] only deposition affords an opportunity to alter the effect of the opponent’s factual claims by obtaining from him any information which would tend to rebut or go to the credibility thereof.” (Carlson v. Superior Court of Los Angeles County (1961) 56 Cal.2d 431, 439.) This is analogous to summary judgment law. (See St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531).

Abundance of information

There is plenty of helpful, easily available information to begin your investigation in the public domain. There are public filings, websites, marketing brochures, court documents, prior lawsuits, etc. A simple Google search can reveal an abundance of public information, especially if any of the companies are publicly traded.

With the arrival of AI-enhanced search capabilities, finding public information can be as simple as running a few prompts in ChatGPT or Perplexity, etc. Do an AI search and then ask AI to allow you to download such public documents or information. Foreign manufacturers’ public filings often have information about the U.S. subsidiaries, including their directors and managers, their locations, launch of products, revenue generated from the U.S. and even acknowledgment of prior lawsuits or settlements. [Editor’s note: Be aware that AI can make up answers when you seek specific- subject information, as opposed to general concepts.  Any AI answer must be carefully fact-checked.]

Company marketing materials often refer to such interconnected entities as “one company,” “united companies,” “family of companies,” or other unifying slogans. Many of these global manufacturers also have multiple high-ranking officers, directors, managers and/or board members who serve high-ranking positions for more than one affiliated entity within the “family” of companies – sometimes simultaneously. Once their identities are ascertained, the same can be confirmed through discovery for the private U.S. subsidiary and cross-referenced. This would lead to the more targeted discovery mentioned above.

Service vs. jurisdiction – Civ. Proc. 101

As these manufacturers reap enormous benefits from California, “notions of fair play and substantial justice” would dictate submitting them to jurisdiction in California. Chances are there is a record of such manufacturers (or their subsidiary) submitting to jurisdiction in California, and/or having taken or submitted to depositions in California, which can be used to argue 1) that they have been subjected to jurisdiction here, and 2) it’s not such an enormous burden for them. Hence, it’s helpful to search for defendant manufacturer’s litigation history, (even if it is not related to the type of product you are suing for).

Using “alter ego,” “single business enterprise,” “agency” and other theories

Theories of “alter ego” and “agency,” are liability theories, but each also apply to the imposition of general jurisdiction. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 537-551.) Under these theories, the jurisdictional analysis bypasses the foreign defendant’s direct “minimum contacts” with California as the contacts of that company are imputed via the presence of the local agent, through whom the foreign principal acts. (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 796.)

Alter ego

To impose California jurisdiction over a foreign manufacturer through its U.S./California subsidiary, plaintiff must show there is such “unity of interest and ownership” between foreign manufacturers and their U.S. subsidiaries that the “separate corporate personalities” of the two entities are merged, so that the American subsidiary is a “mere adjunct” or the “extension” of the foreign manufacturer, which makes it inequitable if the acts in question in such cases are treated as those of either one of these entities alone. (Tran v. Farmers (2002) 104 Cal.App.4th 1202, 1219.) “It would be unjust to permit those who control companies to treat them as a single or unitary enterprise and then assert their corporate separateness in order to commit frauds and other misdeeds with impunity.” (Las Palmas Associates, Cal.App.3d at 1249.) (You don’t need to have a fraud cause of action to make this argument.)

Single-business enterprise

Under this theory a court may disregard the corporate or other business association form and hold one or more entities liable for the debts of an affiliated entity when the affiliated entity “‘is so organized and controlled, and its affairs are so conducted, as to make it merely an instrumentality, agency, conduit, or adjunct of another corporation.’” (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1249.)

Hence, the importance of conducting the discovery to establish the defendants are a part of a “web” of companies which operate as a “single business enterprise” or a “joint venture” under various unifying marketing slogans, corporate constitutions/codes of conduct or joint regulations.

Foreign manufacturers, often control their U.S. subsidiaries not just through stock holdings, but through the most significant aspects of the subsidiary’s (California) operations. Such control can be evidenced through various memoranda, agreements, regulatory documents, joint policies and procedures, cross-company compensation structure (i.e., U.S. subsidiary directors/officers being compensated by the foreign parent entity). Their trademarks do not distinguish between the U.S. and the foreign entity. Most importantly, such entities often consolidate their financial earnings under a shared financial ecosystem, with California sales being a significant contributor towards the financial success of the global enterprise.

Joint venture

A joint venture is an undertaking by two or more entities to combine their property, skill, or knowledge to carry out a single business enterprise for profit. (Holtz v. United Plumbing and Heating Co. (1957) 49 Cal.2d 501, 506.) The joint venture and each of its members are vicariously liable for the torts of its members acting in furtherance of the venture. (Leming v. Oilfields Trucking Co. (1955) 44 Cal.2d 343, 350.) Historically, California case law describes a joint venture as having three elements: 1) each member must have an ownership interest in the venture; 2) the members must have joint control over the business; and 3) the members must share the profits and losses of the business. (Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666; see also Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1056 [right of joint participation in the management of business may satisfy joint control element]; Buck v. Standard Oil Co. of Cal. (1958) 157 Cal.App.2d 230, 240 [“Joint venturers may delegate responsibility between them for certain portions of the job without destroying the joint venture aspect thereof”].) While the parties’ intention is relevant, a joint venture may be “assumed to have been organized from a reasonable deduction from the acts and declarations of the parties.” (Swanson v. Siem (1932) 124 Cal.App. 519, 524; see also Unruh- Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 370.)

The joint structural and operational characteristics of many foreign manufacturers and their U.S. affiliates may satisfy these “joint venture” factors under California law.

Agency

“Agency may confer general jurisdiction in the forum state over a foreign corporation.” (Sonora Diamond, 83 Cal.App.4th at p. 540.) In the context of parent-subsidiary corporations, agency exists where the nature and extent of the control exercised over the subsidiary by the parent is so pervasive that “the subsidiary may be considered nothing more than an agent or instrumentality of the parent.” (Id. at p. 541.) In other words, “if a parent corporation exercises such a degree of control over its subsidiary corporation that the subsidiary can legitimately be described as only a means through which the parent acts, or nothing more than an incorporated department of the parent, the subsidiary will be deemed to be the agent of the parent in the forum state and jurisdiction will extend to the parent.” (Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1455-1456.)

Representative-service doctrine

Jurisdiction over foreign manufacturers could be proper under the “representative service doctrine.” (See Daimler AG v. Bauman, 571 U.S. 117 (2014) [allowing to impute the affiliate entities contact in the jurisdiction on the foreign parent manufacturer, when the local affiliate is performing essential or important functions of the parent company’s business].) Foreign manufacturers often publicly announce how their U.S. affiliate will carry out certain essential functions of their business for the benefit of the overall success of the global manufacturing conglomerate. California is often home to at least one headquarter of such U.S. affiliates of a foreign manufacturer, arguably acting as the “agent of service” for the foreign manufacturer.

Specific jurisdiction in California

The Fourteenth Amendment allows a state to exercise specific personal jurisdiction over a nonresident defendant when the defendant has 1) “deliberately ‘reached out beyond’ its home – by, for example, ‘exploi[ting] a market’ in the forum State,” (i.e., “purposeful availment”) and 2) the plaintiff’s claim “arise[s] out of or relate[s] to the defendant’s contacts” with the forum state such that 3) the maintenance of the suit does not violate traditional notions of fair play and substantial justice. (Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, (2021) 141 S. Ct. 1017, 1025; see also Pavlovich v. Sup. Ct. (2002) 29 Cal.4th 262, 268; accord, Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-473; Int’l Shoe Co. v. Washington, (1945) 326 U.S. 310, 316.)

Many international manufacturers and distributors purposefully direct their actions towards California, as a result of which California plaintiffs suffer various harms, often catastrophic. When a defendant who purposefully directed activities at forum residents seeks to defeat jurisdiction, it must present a compelling case that the presence of some other consideration would render jurisdiction unreasonable. (Burger King, 471 U.S., at pp. 471-476.)

Courts may evaluate: the burden on the defendant of appearing in the forum; the forum state’s interest in adjudicating the claim; the plaintiff’s interest in convenient and effective relief within the forum; judicial economy. (Id. at p. 477; Simons v. Steverson (2001) 88 Cal.App.4th 693,709-710.) This is a multi-factorial analysis, making detailed factual discovery analyzed above, crucial.

In addition to the factors discussed above, some of these foreign corporations sometimes (proudly) fund various research in California, directly or through California institutions, hence establishing stronger and frequent contact with California.

Properly developed, such evidence can shift the burden on the foreign defendant to “present a compelling case that exercise of jurisdiction would be unreasonable.” (Snowney, supra, citing Burger King, 471 U.S. at p. 477.) Personal jurisdiction must rest on the foreign defendant’s purposeful conduct directed at California.

Specific jurisdiction also requires that the lawsuit arise out of, or be related to, the defendant’s contact with the forum. (Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal. App. 4th 1430, 1436 (emphasis added).) In Ford Motor Co. (2021) 141 S.Ct. 1017, the United States Supreme Court concluded that the nexus requirement did not require “but-for” causation. Instead, the location of the harm, the state’s interest in protecting its citizens, and the defendant’s marketing activities in the state combine to provide the necessary relationship between the forum and the claim, notwithstanding the absence of a causal link between the defendant’s particular forum contacts and the plaintiff’s claims. (Ibid., see also Int’l Shoe Co., (1945) 326 U.S. 310, 319 [“[T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue].”)

International corporations (through their “alter egos,” “agents” and/or affiliated subsidiaries) market, distribute, sell, and profit in California. The fact that these entities are carefully organized into separate legal entities should not allow them to easily escape adjudication of cases against them in California.

There is no requirement that the subject injuries be directly caused by any specific conduct. The Supreme Court in Ford stated that “our most common formulation of the [specific personal jurisdiction] rule demands that the suit ‘arise out of or relate to the defendant’s contacts with the forum.’” (Id., 141 S. Ct. at p.1026.) The “first half of that standard asks about causation; but the back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.” (Ibid.) Therefore, other relationship factors such as global corporations’ contacts in California, through their subsidiaries, and their joint efforts to participate in the California market, coupled with injury in California (often at a California employer’s facility), support jurisdiction, under the “relate to” half of the standard.

Exercise of jurisdiction in California over international conglomerates often satisfies “the notions of fair play and substantial justice”

When a non-resident commits the liability-producing acts while physically present in California, the exercise of personal jurisdiction by state courts will almost always constitute “reasonable” and sufficient “contact” to satisfy due process in lawsuits arising from those acts. (Lundgren v. Sup.Ct. (Kahne) (1980) 111 Cal.App.3d 477, 484.)

Plaintiffs can also argue for specific jurisdiction because the effects of the international corporations’ acts and omissions (even those occurring outside of the state) are subject to special regulations in California. The Supreme Court has long recognized a state’s interest in enforcing its own law. In Travelers Health Ass’n v. Virginia, (1950) 339 U.S. 643, 647, the Supreme Court included the “state’s interest in faithful observance” of its regulatory scheme as a factor supporting jurisdiction. The Ford majority likewise recognized that states have an interest in “enforcing their own safety regulations.” (Ford Motor Co., (2021) 141 S. Ct. 1017, 1030.) Therefore, international product manufacturers are subject to specific jurisdiction (even for their out-of-state conduct) with harmful effects in California. (Seagate Technology v. A. J. Kogyo Company, Ltd. (1990) 219 Cal.App.3d 696.) Ford concluded that the interests of another state (where a vehicle was originally sold) were “less significant” than the interests of the states where the plaintiff resided and where the injury occurred. (Ford Motor Co., (2021) 141 S.Ct. 1017, 1030.)

Case law also allows for the consideration of how an international manufacturer causes injurious effects in the state. Indeed, California law recognizes that specific jurisdiction is proper when an international manufacturer causes injurious “effects” in the state “of a nature that the State treats as exceptional and subjects [sic] to special regulation.” (Jamshid-Negad v. Kessler (1993) 15 Cal.App.4th 1704, 1708-1709.) Given California’s regulatory focus on product safety, jurisdiction may be exercised even when the nonresident’s activities are not closely tied to state-conferred benefits or privileges. (Bresler v. Stavros (1983) 141 Cal.App.3d 365, 369.) California’s consumer protection laws should be recognized as “special regulations,” reflecting the state’s compelling interest in consumer safety, particularly if the same product continues to be sold in California by the U.S. subsidiary.

In sum, these are some of the ways to serve and establish jurisdiction in California over a foreign entity/manufacturer. Succeeding in doing so can be as important as any issue in your case. Once the service and jurisdiction are established, you will be on your way to seeking justice for your plaintiff.