Ike’s Place #9 LLC vs SH Icon Santa Barbara LLC
Case No: 19CV00530
Hearing Date: Fri May 24, 2019 9:30

Nature of Proceedings: Motion to Quash Service of Summons and Complaint

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant SH ICON Santa Barbara LLC to quash service of summons and complaint based upon service of process on March 22, 2019, is granted and such service is quashed. This ruling has no effect upon the later service as set forth in the proof of service as occurring on April 26, 2019.

Background:

On January 30, 2019, plaintiff Ike’s Place #9, LLC, filed its complaint in this action against defendant SH ICON Santa Barbara LLC asserting causes of action for breach of contract and fraud.

On March 22, 2019, plaintiff purported to serve Jeremy Barnett on behalf of defendant. (Barnett decl., ¶ 8; Proof of Service, filed Mar. 25, 2019.)

On April 22, 2019, defendant filed this motion to quash service of summons on the grounds that service of summons on Barnett was insufficient to effect service on defendant. (See Barnett decl., ¶¶ 3-5.)

On April 26, 2019, plaintiff personally served the summons and complaint on a person identified in the proof of service as authorized to accept service of summons on behalf of defendant. (Proof of Service, filed May 8, 2019; see also Thyne decl., ¶ 3.)

Plaintiff opposes the motion to quash as moot and seeks an award of monetary sanctions pursuant to Code of Civil Procedure section 128.5.

Analysis:

At the time that this motion to quash was filed, plaintiff had delivered the summons and complaint to a person asserted in the proof of that service to have been served on behalf of defendant. (Proof of Service, filed Mar. 25, 2019, ¶ 3.) According to that proof of service, service was effected by personal service on March 22, 2019.

Defendant filed this motion to quash summons on April 22, 2019, the last day to file a timely pleading in response to the purported service and hence the last day to file a timely motion to quash without leave of court. (See Code Civ. Proc., § 418.10, subd. (a).)

In response to the motion to quash, plaintiff “cured” defendant’s objection to service by serving defendant’s registered agent for service of process. (Opposition, p. 2; Thyne decl., ¶ 3.) On that basis, plaintiff asserts that the motion is moot and should have been withdrawn after plaintiff re-served the defendant. Plaintiff also seeks sanctions against defendant for failing to withdraw the motion.

The motion is not moot. There is a proof of service filed by plaintiff asserting that the service on Barnett constituted sufficient service on defendant. There is no evidence before the court that plaintiff conceded that the first service was ineffective. “[I]t cannot be seriously doubted that in cases of a double service of process, where the first one is valid and accomplished all the purposes for which a summons is issued, it is not annulled by a second service ….” (Andrews v. Jacoby (1919) 39 Cal.App. 382, 384.) Thus, the mere fact that there was a second service on the defendant—this time through its registered agent—does not imply that plaintiff could not assert that the first service was effective and according to which defendant had an obligation timely to respond. Because the validity of the first service remains an issue, the motion to quash is not moot.

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, fn. omitted.) Plaintiff’s opposition does not present any evidence that the first service was effective as having been served on a person authorized to accept service on behalf of defendant. (See Corp. Code, § 17701.16.) Defendant’s motion to quash the first service of summons therefore will be granted. This ruling has no effect upon the second service of summons and complaint, which service is not before the court and about which the court expresses no opinion.

Plaintiff also seeks an award of monetary sanctions under Code of Civil Procedure section 128.5. “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (a).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2).) As discussed above, the underlying motion is meritorious and not frivolous. The request for sanctions also suffers from procedural infirmities. (See Code Civ. Proc., subd. (f)(1)(A) [motion for sanctions must be separate from other motions], (f)(1)(B) [motion for sanctions cannot be filed until after 21-day safe harbor].) Accordingly, the request for an award of monetary sanctions is denied.

Under the circumstances presented here, both the motion and the opposition could have been easily avoided with effective communication between the parties. If defendant’s counsel had spoken to plaintiff’s counsel before filing the motion, plaintiff’s counsel could easily have agreed that the first service was ineffective. Because only the manner of service is at issue here (and not, for example general personal jurisdiction), the motion to quash only had the effect of delaying when a responsive pleading was due. Despite the request for an award of monetary sanctions, there is no evidence that plaintiff’s counsel communicated with defendant’s counsel prior to filing the opposition. Again, counsel could simply have agreed that the first service was ineffective and avoided the necessity of the motion or a reply. Finally, since the only effect of granting the motion is to invalidate the first service, which plaintiff has by this time essentially conceded, plaintiff could simply have filed a notice of non-opposition and avoided the expenses for which monetary sanctions were sought. Although not always required by statute, counsel are encouraged to discuss issues and attempt to resolve those issues informally before seeking court orders whenever possible.