No. 58506-1-I.The Court of Appeals of Washington, Division One.
July 23, 2007.
Appeal from judgments of the Superior Court for Ring County, No. 05-2-39185-5, Julie Spector, J., entered Jun e 16 and 27, 2006.
Affirmed
by unpublished per curiam opinion.
PER CURIAM.
Eric Rootvik appeals the dismissal of his lawsuit against the Society of Counsel Representing Accused Persons (SCRAP) for insufficient service of process based on the statutory requirements for service of process on corporations, RCW 4.28.080(9). Because Rootvik did not comply with the statutory requirements under RCW 4.28.080(9), we affirm.
FACTS
In February 2003, an attorney with the Society of Counsel Representing Accused Persons (SCRAP), a non-profit Washington corporation, Kara Dansky represented Eric Rootvik on misdemeanor domestic harassment charge. Following the trial on February 5, a jury convicted Rootvik as charged. Rootvik appealed. During the pendency of the appeal, his attorney obtained a stipulation from the City to set aside the jury verdict because Dansky failed to present evidence of Rootvik’s 911 call to corroborate his version of the incident.
Almost three years later, on December 2, 2005, Rootvik filed a lawsuit against Dansky, SCRAP, and SCRAP’s registered agent Anne Daly (collectively “SCRAP”) alleging Dansky provided ineffective assistance of counsel and committed legal malpractice. Because Dansky no longer worked at SCRAP, on December 8, Rootvik said he sent a copy of the summons and complaint by certified mail to Dansky at a post office box address in California. On December 29, Rootvik filed an amended complaint, also alleging SCRAP violated the Consumer Protection Act and his due process rights.
On January 6, 2006, Rootvik filed a Declaration of Personal Service. In the declaration, Mike Vines states that on December 9, 2005, he delivered a copy of the summons and complaint to the SCRAP office located at 1401 East Jefferson Street, Suite 200, and the “secretary located at the entrance” accepted the documents.
On May 17, 2006, SCRAP filed a CR 12(b)(5) motion to dismiss Rootvik’s suit for lack of jurisdiction based on insufficient service of process. In support, SCRAP submitted the declaration of Daly, the executive director and the registered agent of SCRAP. In her declaration, Daly states that the office receptionist is not authorized to accept service on behalf of SCRAP. Daly also states that at some point, she found a copy of the summons and complaint on her desk. SCRAP also argued that Rootvik did not properly serve Dansky.
In opposition, Rootvik argued that he substantially complied with an “alternate” method of service by serving a legal secretary who was authorized to accept service for SCRAP. Rootvik submitted the declaration of Mike Vines providing a detailed description of his conversation with the woman at the front desk and her agreement to accept the summons and complaint. Rootvik did not respond to SCRAP’s argument that Dansky was not properly served.
After filing his response to the motion to dismiss, on June 9, Rootvik requested a continuance of the motion to dismiss in order to conduct discovery and obtain information about the woman who accepted service for SCRAP. On June 13, the trial court denied Rootvik’s motion because Rootvik did not present “good cause to allow Plaintiff an extension of time to supplement his response”.
On June 14, Rootvik filed another response and declaration in opposition to the motion to dismiss. In the response, Rootvik argued that because a majority of the employees at SCRAP are attorneys, it was likely an attorney who authorized the woman at the front desk to accept service. Rootvik also argued that he properly served Dansky by mailing a copy of the summons and complaint to a post office box address in California and submitted proof of mailing.
On June 16, the trial court granted SCRAP’s motion under CR 56 and dismissed without prejudice, Rootvik’s lawsuit against Dansky, SCRAP, and Daly for insufficient service of process. The court denied Rootvik’s motion for reconsideration.
ANALYSIS
Rootvik challenges the trial court’s dismissal of his lawsuit against SCRAP for insufficient service of process.[1] Rootvik argues that he served a person authorized to accept service for SCRAP. In the alternative, Rootvik argues he substantially complied with the statutory requirements for service of process on corporations because Daly, the authorized agent of SCRAP, received a copy of the summons and complaint.
Where, as here, the trial court considers matters outside the pleadings, the motion is treated as one for summary judgment. Hartley v. American Contract Bridge League, 61 Wn. App. 600, 603, 812 P.2d 109
(1991) (citing John Does 1-9 v. CompCare, Inc., 52 Wn. App. 688, 763 P.2d 1237 (1988)); CR 12(b). We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc’ns, Inc. v. Seattle Times, 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c) Hearst, 154 Wn.2d at 501.
The failure to properly serve a defendant prevents the court from obtaining jurisdiction over the defendant. Crystal, Ltd. v. Factoria Ctr. Invs., 93 Wn. App. 606, 609-10, 969 P.2d 1093 (1999) (citin Scott v. Goldman, 82 Wn. App. 1, 6, 917 P.2d 131 (1996). “?Beyond due process [requirements], statutory service requirements must be complied with in order for the court to finally adjudicate the dispute between the parties.'” Weiss v. Glemp, 127 Wn.2d 726, 734, 903 P.2d 455 (1995) (quoting Thayer v. Edmonds, 8 Wn. App. 36, 40, 503 P.2d 1110
(1972)).
It is undisputed that RCW 4.28.080(9) sets forth the requirements for service of process on corporations such as SCRAP.
RCW 4.28.080 provides:
Service made in the modes provided in this section shall be taken and held to be personal service. The summons shall be served by delivering a copy thereof, as follows:
. . .
(9) If the suit be against a company or corporation . . . 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.
In addition, according to the 1987 legislative report, under RCW 4.28.080(9), “[p]ersonal service must be made on the person designated by statute.” See also Witt v. Port of Olympia, 126 Wn. App. 752, 757-58, 109 P.3d 489 (2005).
In Crystal, because the registered agent of defendant Factoria Investments was unavailable, the process server left the summons and complaint with a bookkeeper who “allegedly said she was authorized to accept service.” Crystal, 93 Wn. App. at 608. When Factoria filed a motion to dismiss for insufficient service of process, Crystal attempted to personally serve the registered agent again. Because the agent was unavailable and Crystal was unable to locate the agent’s home address, Crystal served the Washington Secretary of State under RCW 23B.05.040 of the Washington business corporation act, RCW 23B.[2] Crystal, 93 Wn. App. at 608.
On appeal, we reversed the trial court’s dismissal of Crystal’s lawsuit against Factoria. We held because Crystal’s failure to serve the registered agent was not the result of Crystal’s lack of reasonable diligence, Crystal satisfied the requirements for substitute service under RCW 23B.05.040 by serving the secretary of state. Crystal, 93 Wn. App. at 612-13. In reaching this holding, we rejected Crystal’s argument that it substantially complied with the statutory requirements for service of process on corporations under RCW 4.28.080(9) and stated that “the service statute for corporations communicates the Legislature’s decision that only persons holding certain positions can accept service on behalf of a corporation.” Crystal, 93 Wn. App. at 610.
In Witt, 126 Wn. App. 752, we also affirmed the trial court’s decision to dismiss for failure to properly serve the defendant Port of Olympia under RCW 4.28.080(9). Witt argued she complied with the service requirements under RCW 4.28.080(9) by delivering a copy of the petition to “the clerk” working for the Port, because a “clerk” is the same as an office assistant. Witt, 126 Wn. App. at 755. In rejecting this argument, we concluded that while the clerk may have occupied a position similar to an office assistant, “Witt presented no prima facie proof that he was an office assistant to one of the persons named in the service statute” nor allege that he was one of the persons enumerated in the statute. Id. at 758.
Here, as in Crystal and Witt, we conclude the record does not support Rootvik’s claim that he served a person statutorily authorized to accept service for SCRAP. Rootvik admits he did not serve SCRAP’s registered agent, Daly. Instead, he asserts that he served the secretary at SCRAP who told him she could accept service as authorized by the statute. But even assuming without deciding that the service was on a secretary at SCRAP, Rootvik does not show nor does he allege that she was the secretary of the “president or other head of the company or corporation, registered agent, secretary, cashier or managing agent” as required by RCW 4.28.080(9).
According to Mike Vines, he spoke to the woman at the front desk who was “typing on a computer.” Vines said to the woman that he needed to serve Anne Daly, the registered agent for SCRAP, with a complaint. When the woman told him Daly was not in, Vines asked if she was authorized to accept service for SCRAP. According to Vines, the woman said she was new and did not know if she could accept service. But after checking with someone else in the office, she said she could. Vines recounted the conversation he overheard as follows:
`Hi, there’s this gentleman here who needs to serve a summons, and ahhh, complaint on us . . . to us, he asked for Mrs. Daley [sic] but she [sic] not in now, so he, ahhh, wants to know if I [sic] authorized to accept it, or is there anyone here who can. Can I except [sic] it? (one to two second pause,) . . . `Ok.’ After maybe 2 seconds, she hung up and said, `Ok, I can accept it.’ I asked her name and she told me, at which time I wrote it down on the file folder I was carrying the documents in.’
According to Vines, because he misplaced the file folder on which he wrote the name, he did not know the name of the woman who accepted service.
In the alternative, Rootvik argues that he substantially complied with the statute because Vines reasonably believed that he was serving someone who had the authority to accept service on behalf of SCRAP. Rootvik relies on Reiner v. Pittsburg Des Moines Corp., 101 Wn.2d 475, 680 P.2d 55
(1984) (a manager of site support services has sufficient discretionary authority to act in a representative capacity to accept service of process on a foreign corporation under RCW 4.28.080(10)), and Lockhart v. Burlington Northern Railroad Co., 50 Wn. App. 809, 750 P.2d 1299 (1988) (the receptionist was not an authorized agent to accept service of process on a railroad company under RCW 4.28.080(4)).
But Rootvik did not substantially comply with the statute. “In the cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty.” Seattle v. Public Employment Relations Comm’n, 116 Wn.2d 923, 928, 809 P.2d 1377
(1991). And the cases Rootvik relies on are distinguishable as they involve service on a foreign corporation and a railroad company. To the extent Rootvik is arguing that the court’s reasoning in these cases apply by analogy, they fail to support his argument. Rootvik is not alleging that he served a “managing agent” of SCRAP.
We also reject Rootvik’s argument that because the summons and complaint were given to Daly who ultimately had actual notice of the lawsuit, he complied with the purpose of the service statute, which is to provide due process. But “there is a difference between constitutionally adequate service and service required by the statute[.]” Weiss, 127 Wn.2d at 734.[3] Statutory service requirements may add to the constitutional requirements. See Crystal, 93 Wn. App. at 609. Here, Rootvik did not serve the summons and complaint on SCRAP as required by the statute.
Rootvik also contends the trial court abused its discretion by failing to allow him additional time to conduct discovery.[4] When a party is unable to present affidavits essential to justify his opposition to the summary judgment motion, the court may order a continuance to allow the party time to obtain such affidavits, to take depositions, to conduct discovery, or to perform other tasks the court deems just. CR 56(f).
A trial court’s ruling on a motion for a continuance under CR 56(f) is reviewed for manifest abuse of discretion. Janda v. Brier Realty, 97 Wn. App. 45, 54, 984 P.2d 412 (1999), (citing Molsness v. Walla Walla, 84 Wn. App. 393, 400, 928 P.2d 1108 (1996)). A court does not abuse its discretion if “(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.” Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989) (citing Lewis v. Bell, 45 Wn. App. 192, 196, 724 P.2d 425 (1986)).
Below, Rootvik argued that an extension was necessary to obtain the name of the woman who accepted service for SCRAP and establish her job function as a secretary for SCRAP. In denying Rootvik’s motion, the trial court ruled that it “does not find good cause to allow Plaintiff an extension of time to supplement his response to Defendants’ Motion to Dismiss.”
We conclude the trial court did not abuse its discretion in denying Rootvik’s motion because Rootvik’s desired evidence will not raise a genuine issue of material fact. Premised on his claim that the basis for the trial court’s dismissal was the missing name of the woman, Rootvik argues the court abused its discretion when it denied his request for an extension in order to discover the woman’s name. But merely supplying the name of the woman without any further proof that the woman is one of the persons statutorily authorized to accept service on behalf of SCRAP pursuant to RCW 4.28.080(9) does not raise a genuine issue of material fact as to whether service on SCRAP was proper.[5]
We affirm.
County, 126 Wn. App. 250, 108 P.3d 805 (2005), (Quality Rock Products, Inc. v. Thurston County, 137 Wn. App. 1006 (2007) (subsequent appeal on other grounds), is also misplaced. In Quality Rock, the parties stipulated to facts that established valid service under RCW 4.28.080(9).