Symon Mandawala v. Era Living Llc ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SYMON B. MANDAWALA,
DIVISION ONE
Appellant,
No. 80543-6-I
v.
UNPUBLISHED OPINION
ERA LIVING AT ATP and DENNIS
NEWMAN JR.,
Respondents.
DWYER, J. — Symon Mandawala appeals the trial court’s order granting
Era Living, LLC’s motion to dismiss for insufficient service of process.
Mandawala asserts that the trial court erred in concluding that Mandawala did not
properly serve Era Living. Mandawala also contends that the trial court erred by
(1) failing to exercise its jurisdiction over the proceedings; (2) refusing to allow
him to amend his pleading and service of process; (3) denying his motion for
reconsideration after the judge overseeing the matter retired; and (4) not allowing
him to file a surreply in response to Era Living’s motion to dismiss. Additionally,
Mandawala asserts that Era Living waived its defense of insufficient service of
process and engaged in improper ex parte communication with the trial court.
Mandawala does not establish an entitlement to appellate relief. Accordingly, we
affirm.
I
On February 4, 2019, Mandawala, acting pro se, filed a complaint against
Era Living in the King County Superior Court. This complaint incorrectly named
No. 80543-6-I/2
“Era Living, LLC” as “Era Living at ATP.” On February 21, 2019, Mandawala
mailed a copy of the complaint and an order setting civil case schedule to Era
Living’s Seattle office. On February 26, 2019, Mandawala mailed an amended
order setting civil case schedule to Era Living. On March 25, 2019, Mandawala
sent Era Living, via certified mail, a purported certificate of service, 1 another copy
of the amended order setting civil case schedule, and another copy of the
complaint.
Notably, all three of Mandawala’s mailings to Era Living were addressed
generally to “Era Living” and not to any particular individual. Moreover, none of
the mailings included a summons.
On April 22, 2019, counsel for Era Living mailed a letter to Mandawala
stating that he had not properly served Era Living and that Era Living intended to
move to dismiss the case for insufficient service of process. The letter included
an Internet link to the Washington State Superior Court Civil Rules and explained
that those rules contained the requirements for service of process.
The following day, Mandawala sent an e-mail to Era Living’s counsel
expressing his belief that he had properly served Era Living on March 25, 2019.
Era Living’s counsel responded to Mandawala, reiterating that the March 25
mailing did not constitute sufficient service of process under the Superior Court
Civil Rules.
1 This document, which is signed by Mandawala and entitled “CERTIFICATE OF
SERVICE,” states that Era Living “has been served in accordance to the king county Rules and
procedures.”
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No. 80543-6-I/3
On July 26, 2019, Era Living filed a motion to dismiss based on insufficient
service of process. In support, Era Living submitted the declaration of Skylar A.
Sherwood, who was the counsel for Era Living. Sherwood attached as exhibits
to her declaration copies of the mailings sent by Mandawala to Era Living, a copy
of the letter mailed to Mandawala by Era Living, and a copy of the e-mail
response sent to Mandawala regarding service of process. In his response to
the motion to dismiss, Mandawala asserted that a process server had hand
delivered “court paper work” to the “person on the desk” at Era Living’s Seattle
office. However, Mandawala did not produce a declaration from the process
server detailing the manner in which Era Living was served. On August 23,
2019, the trial court heard the motion to dismiss. The trial court granted the
motion. Mandawala then filed a motion for reconsideration, which the trial court
denied. Mandawala appeals.
II
Mandawala first asserts that a process server personally served Era Living
and, consequently, the trial court erred by concluding that service of process was
insufficient. Additionally, Mandawala contends that the trial court erred in
concluding that RCW 23.95.450—a statute permitting service of process by
certified mail on a corporation under certain circumstances—did not apply to
Mandawala’s situation. Because Mandawala failed to properly serve Era Living
in either of these respects, we disagree.
Where, as here, the trial court considers matters outside the pleadings,
the motion is treated as one for summary judgment. Hartley v. Am. Contract
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No. 80543-6-I/4
Bridge League, 61 Wash. App. 600, 603, 812 P.2d 109 (1991). On review of a
summary judgment order, we engage in the same inquiry as the trial
court. Wash. State Major League Baseball Stadium Pub. Facilities Dist. v.
Huber, Hunt & Nichols-Kiewit Constr. Co., 165 Wash. 2d 679, 685, 202 P.3d 924
(2009). All facts and reasonable inferences are considered in a light most
favorable to the nonmoving party, and all questions of law are reviewed de
novo. Berger v. Sonneland, 144 Wash. 2d 91, 102-03, 26 P.3d 257 (2001).
Summary judgment is appropriate when “there is no genuine issue as to any
material fact and [] the moving party is entitled to a judgment as a matter of law.”
CR 56(c).
Whether service of process was proper is a question of law that we review
de novo. Goettemoeller v. Twist, 161 Wash. App. 103, 107, 253 P.3d 405 (2011).
“Proper service of the summons and complaint is a prerequisite to a court’s
obtaining jurisdiction over a party.” Harvey v. Obermeit, 163 Wash. App. 311, 318,
261 P.3d 671 (2011). “When a defendant challenges service of process, the
plaintiff has the initial burden of proof to establish a prima facie case of proper
service.” Northwick v. Long, 192 Wash. App. 256, 261, 364 P.3d 1067 (2015). The
plaintiff may do this with the declaration of a process server that is “regular in
form and substance.” Northwick, 192 Wash. App. at 261. The defendant must then
show by clear and convincing evidence that service was improper. Northwick,
192 Wash. App. at 261.
The pertinent statute provides that personal service on a corporation must
be made as follows:
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No. 80543-6-I/5
Service made in the modes provided in this section is personal
service. The summons shall be served by delivering a copy
thereof . . . to the president or other head of the company or
corporation, the registered agent, secretary, cashier or managing
agent thereof or to the secretary, stenographer or office assistant of
the president or other head of the company or corporation,
registered agent, secretary, cashier or managing agent.
RCW 4.28.080(9).
“[P]ersonal service statutes require . . . substantial compliance.” Martin v.
Triol, 121 Wash. 2d 135, 144, 847 P.2d 471 (1993). “‘Substantial compliance has
been defined as actual compliance in respect to the substance essential to every
reasonable objective of [a] statute.’” City of Seattle v. Pub. Emp’t Relations
Comm’n, 116 Wash. 2d 923, 928, 809 P.2d 1377 (1991) (alteration in original)
(quoting In re Santore, 28 Wash. App. 319, 327, 623 P.2d 702 (1981)). “In the
cases where substantial compliance has been found, there has been actual
compliance with the statute, albeit procedurally faulty.” Pub. Emp’t Relations
Comm’n, 116 Wash. 2d at 928.
Mandawala contends that a process server personally served Era Living.
However, Mandawala did not introduce any evidence, such as a declaration of
the process server, to establish a prima facie case of proper
service. See Northwick, 192 Wash. App. at 261. Rather, Mandawala merely
asserted in his response to Era Living’s motion to dismiss that a process server
delivered “court paper work” to the “person on the desk” at Era Living’s Seattle
office. To prove that a process server personally served Era Living, Mandawala
was required to produce “the person’s affidavit of service endorsed upon or
attached to the summons.” CR 4(g)(2). Mandawala’s assertion, without more,
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No. 80543-6-I/6
was merely hearsay without an exception, and was thus inadmissible evidence of
personal service. See ER 802.
Nonetheless, even if true, Mandawala did not prove that his claim
constituted proper personal service because it does not identify the “person on
the desk” or establish that this person was one of the individual’s listed in RCW
4.28.080(9). Therefore, Mandawala’s purported personal service of process on
Era Living did not substantially comply with the requirements of the personal
service statute. See Pub. Emp’t Relations Comm’n, 116 Wash. 2d at 928 (“In the
cases where substantial compliance has been found, there has been actual
compliance with the statute, albeit procedurally faulty.”). Therefore, Mandawala
did not establish that a process server personally served Era Living.
Next, Mandawala contends that he properly served Era Living via certified
mail. The uniform business organizations code provides a means by which a
corporation may be served process via certified mail:
(1) A represented entity[2] may be served with any process, notice,
or demand required or permitted by law by serving its registered
agent.
(2) If a represented entity ceases to have a registered agent,
or if its registered agent cannot with reasonable diligence be
served, the entity may be served by registered or certified mail,
return receipt requested, or by similar commercial delivery service,
addressed to the entity at the entity’s principal office. The address
of the principal office must be as shown in the entity’s most recent
annual report filed by the secretary of state. Service is effected
under this subsection on the earliest of:
(a) The date the entity receives the mail or delivery by the
commercial delivery service;
(b) The date shown on the return receipt, if executed by the
2 “Represented entity” means “[a] domestic entity” or “[a] registered foreign entity.” RCW
23.95.400(3)(a)-(b). “‘Domestic,’ with respect to an entity, means governed as to its internal
affairs by the law of this state.” RCW 23.95.105(4). Further, “[e]ntity” includes “[a] limited liability
company.” RCW 23.95.105(6)(e).
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No. 80543-6-I/7
entity; or
(c) Five days after its deposit with the United States postal
service or commercial delivery service, if correctly addressed and
with sufficient postage or payment.
RCW 23.95.450.
Mandawala bore the burden to prove that he was authorized under this
statute to serve Era Living via certified mail. See Northwick, 192 Wash. App. at 261
(“When a defendant challenges service of process, the plaintiff has the initial
burden of proof to establish a prima facie case of proper service.”). For a party to
be authorized to serve process via certified mail pursuant to RCW 23.95.450, the
party must present facts establishing that the represented entity either “ceases to
have a registered agent, or [that] its registered agent cannot with reasonable
diligence be served.” RCW 23.95.450(2). Mandawala did not establish either of
these things. In particular, Mandawala did not present any evidence
demonstrating that Era Living did not have a registered agent. Further,
Mandawala did not show that Era Living’s registered agent could not be served
with reasonable diligence. “Reasonable diligence requires the plaintiff to make
honest and reasonable efforts to locate [another].” Wright v. B&L Props., Inc.,
113 Wash. App. 450, 458, 53 P.3d 1041 (2002). Because Mandawala presented
no evidence that he met either of the conditions under RCW 23.95.450, this
statute did not authorize Mandawala to serve Era Living via certified mail.
In any event, Mandawala’s mailings did not constitute sufficient service of
process because they did not contain a summons, which is required by the
Superior Court Civil Rules. See CR 4(d)(1) (“The summons and complaint shall
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No. 80543-6-I/8
be served together.”). Accordingly, the trial court did not err by concluding that
Mandawala’s mailings to Era Living did not constitute proper service of process.
Finally, Era Living’s act of filing a notice of appearance does not excuse
Mandawala’s failure to provide sufficient service of process. Indeed, “the mere
appearance by a defendant does not preclude the defendant from challenging
the sufficiency of service of process.” Lybbert v. Grant County, 141 Wash. 2d 29,
43, 1 P.3d 1124 (2000).
For these reasons, the trial court did not err in concluding that Mandawala
did not properly serve Era Living.
III
Mandawala next contends that the trial court erred by not exercising
jurisdiction over Era Living pursuant to RCW 4.28.020. However, Mandawala’s
interpretation of RCW 4.28.020 is incorrect.
RCW 4.28.020 states:
From the time of the commencement of the action by service of
summons, or by the filing of a complaint, or as otherwise provided,
the court is deemed to have acquired jurisdiction and to have
control of all subsequent proceedings.
This statute does not grant a trial court personal jurisdiction over a party.
Rather, it provides that a trial court has jurisdiction over all proceedings
subsequent to the commencement of an action. The trial court properly
exercised its jurisdiction over the proceedings when it held a hearing on—and
subsequently granted—Era Living’s motion to dismiss for insufficient service of
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No. 80543-6-I/9
process. The trial court properly concluded that it had not acquired personal
jurisdiction over Era Living and accordingly dismissed the action. 3
IV
Mandawala also asserts that the trial court erred by not allowing him to
amend his pleading and service of process under CR 15 and CR 4(h).
Mandawala’s pleading incorrectly named “Era Living, LLC” as “Era Living
at ATP.” Although CR 15 allows a party to amend its pleading under certain
circumstances, 4 the trial court’s order granting Era Living’s motion to dismiss was
based on insufficient service of process, not a defective pleading.
To the extent that Mandawala contends that the trial court erred by not
allowing him to amend his summons under CR 15, his argument is flawed. CR
15 applies to the amendment of a pleading, not a summons. 5 It is CR 4(h) that
3 A trial court always has jurisdiction to determine its jurisdiction. Mead Sch. Dist. No.
354 v. Mead Ed. Ass’n, 85 Wash. 2d 278, 280, 534 P.2d 561 (1975) (citing United States v. United
Mine Workers of Am., 330 U.S. 258, 292 n.57, 67 S. Ct. 677, 91 L. Ed. 884 (1947); United States
v. Shipp, 203 U.S. 563, 573, 27 S. Ct. 165, 51 L. Ed. 319 (1906)).
4 CR 15 provides:
Amendments. A party may amend the party’s pleading once as a matter of
course at any time before a responsive pleading is served, or, if the pleading is
one to which no responsive pleading is permitted and the action has not been
placed upon the trial calendar, the party may so amend it at any time within 20
days after it is served. Otherwise, a party may amend the party’s pleading only
by leave of court or by written consent of the adverse party; and leave shall be
freely given when justice so requires. If a party moves to amend a pleading, a
copy of the proposed amended pleading, denominated “proposed” and unsigned,
shall be attached to the motion. If a motion to amend is granted, the moving
party shall thereafter file the amended pleading and, pursuant to rule 5, serve a
copy thereof on all other parties. A party shall plead in response to an amended
pleading within the time remaining for response to the original pleading or within
10 days after service of the amended pleading, whichever period may be the
longer, unless the court otherwise orders.
CR 15(a).
5 “Pleading” is defined in CR 7:
Pleadings. There shall be a complaint and an answer; a reply to a counterclaim
denominated as such; an answer to a cross claim, if the answer contains a cross
claim; a third party complaint, if a person who was not an original party is
summoned under the provisions of rule 14; and a third party answer, if a third
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No. 80543-6-I/10
applies to the amendment of a summons. 6 Regardless, Mandawala would have
had to serve a summons in order to be entitled to amend any defect in
it. See Sammamish Pointe Homeowners Ass’n v. Sammamish Pointe LLC, 116
Wash. App. 117, 64 P.3d 656 (2003) (holding that a party may amend a defective
summons that was properly served).
Nor does CR 4(h) permit a party to amend insufficient service of process.
Instead, CR 4(h) applies to the amendment of “process or proof of service.”
“Process” is defined as a “summons or writ, esp[ecially] to appear or respond in
court.” BLACK’S LAW DICTIONARY 1399 (10th ed. 2014). However, “‘[s]ervice of
process refers to a formal delivery of documents that is legally sufficient to
charge the defendant with notice of a pending action.’” Larson v. Kyungsik Yoon,
187 Wash. App. 508, 515, 351 P.3d 167 (2015) (quoting Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S. Ct. 2104, 100 L. Ed. 2d
722 (1988)). Accordingly, CR 4(h) does not permit a party to amend defective
service of process. Indeed, “[a] failure to accomplish personal service of process
is not a defect that can be cured by amendment of paperwork.” Sammamish
Pointe LLC, 116 Wash. App. at 124. Therefore, Mandawala’s assignment of error
fails.
party complaint is served. No other pleading shall be allowed, except that the
court may order a reply to an answer or a third party answer.
CR 7(a). Thus, a summons is not a pleading.
6 CR 4(h) states: “At any time in its discretion and upon such terms as it deems just, the
court may allow any process or proof of service thereof to be amended, unless it clearly appears
that material prejudice would result to the substantial rights of the party against whom the process
issued.”
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No. 80543-6-I/11
V
Mandawala also contends that the trial court erred by denying his motion
for reconsideration after the trial judge overseeing the matter had retired.
However, the retired judge was appointed as a judge pro tempore by the
presiding judge prior to ruling on the motion for reconsideration. This complied
with the requirements of the Washington State Constitution, which provides that
“if a previously elected judge of the superior court retires leaving a pending case
in which the judge has made discretionary rulings, the judge is entitled to hear
the pending case as a judge pro tempore without any written agreement.” W ASH.
CONST. art. IV, § 7. Accordingly, the trial judge was fully authorized to rule on the
motion for reconsideration.
VI
Mandawala next asserts that the trial court erred by not allowing him to
respond to Era Living’s reply in support of its motion to dismiss. However, the
Kind County Superior Court Civil Rules do not authorize a party to file a
surreply. See LCR 7(b)(4). Rather, these local rules merely provide for the filing
of a motion, a response, and a reply. See LCR 7(b)(4)(A)-(E). Because
Mandawala was not entitled to file a surreply in opposition of Era Living’s motion
to dismiss, the trial court did not err by not allowing him to do so.
VII
Mandawala additionally contends that Era Living engaged in dilatory
conduct, thereby waiving its right to seek dismissal pursuant to CR 12(b)(5).
Mandawala is wrong.
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No. 80543-6-I/12
“A defendant may waive the defense of insufficient service of process
if . . . ‘the defendant has been dilatory in asserting the defense.’” Davis v.
Blumenstein, 7 Wash. App. 2d 103, 117, 432 P.3d 1251 (2019) (internal quotation
marks omitted) (quoting Harvey, 163 Wash. App. at 323).
According to Mandawala, Era Living engaged in dilatory conduct by
making deceptive statements in its correspondence with him. Yet Mandawala
does not demonstrate how, exactly, Era Living’s correspondence could have
caused any delay. Regardless, Era Living’s correspondence was not deceitful.
Era Living’s letter to Mandawala dated April 22, 2019, correctly stated that “to
date, Era Living has not been properly served with the Summons and Complaint
and you have not taken any further action in this matter.” The letter then
provided an Internet link to the Washington State Superior Court Civil Rules by
which Mandawala could find the rules governing service of process. Further, the
e-mail sent by Era Living on April 24, 2019, reiterated the same information.
Therefore, Era Living’s correspondence with Mandawala was neither deceitful
nor dilatory.
Mandawala additionally asserts that Era Living acted deceptively by (1)
not including an “attached receipt” in the exhibits affixed to the declaration in
support of its motion to dismiss and (2) indicating in its motion to dismiss that
Mandawala had not produced an affidavit of service. Again, these acts did not
cause any delay.
Because Era Living did not engage in dilatory conduct, it did not waive its
right to seek dismissal for insufficient service of process.
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No. 80543-6-I/13
VIII
Mandawala finally asserts that Era Living engaged in improper ex parte
communication with trial court staff. Mandawala apparently refers to e-mail
communications between Era Living and trial court staff seeking to schedule a
date and time for a hearing on Era Living’s motion to dismiss. Mandawala
attached copies of these e-mail communications to his opening brief, but they are
not contained in the record. As “a reviewing court, [we] only consider[] on appeal
evidence which was admitted in the trial court.” Dioxin/Organochlorine Ctr. v.
Dep’t of Ecology, 119 Wash. 2d 761, 771, 837 P.2d 1007 (1992); see also Casco
Co. v. Pub. Util. Dist. No. 1 of Thurston County, 37 Wash. 2d 777, 784-85, 226 P.2d
235 (1951) (refusing to consider a purported copy of a contract that was attached
as an appendix to a brief and not admitted in the trial court). Thus, we do not
consider these e-mail communications. 7
Affirmed.
7 In any event, any communication between Era Living and trial court staff that was
designed to facilitate the scheduling of a hearing on a motion to dismiss would not be improper
under the King County Superior Court Local Civil Rules. See LCR 7(b)(4)(B) (“The time and date
for hearing shall be scheduled in advance by contacting the staff of the hearing judge.”).
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No. 80543-6-I/14
WE CONCUR:
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