Judge: Nathan R. Scott, Case: BML Management v. Khor, Date: 2022-12-09 Tentative Ruling

Case Management Conference

The CMC is continued to 3/3/23 at 10 am, when a demurrer is already set.

On a related note, on its own motion the court continues defendant Tony Sharma’s demurrer from 2/17/23 to 3/3/23 at 10 am, when another demurrer is already set.

Motion to vacate

Defendant Steele Canyon LLC’s motion to vacate is granted.  (See Code Civ. Proc. 473, subds. (b), (d), 473.5.)  

As defendant challenges service, the burden falls on plaintiff to show proper service.  (See Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439.)

Plaintiff has not shown it can serve an out-of-state LLC though its registered agent for service of process in California after the LLC cancels its California registration.  (See Sharma decl. Ex. 5-6 & Ex. 2.)  The Secretary of State website on which plaintiff relies shows a 6/26/20 inactive date for the LLC.  (See Fratts decl. Ex. 1.) 

Once plaintiff canceled its California registration, proper service would have been through the Secretary of State, not the registered agent.  (Corp. Code, §§ 2114(b), 17708.07(d).)

Moreover, even if service on the registered agent was proper, it did not result in actual notice to defendant in time for it to defend the action.  (See Code Civ. Proc., § 473.5; see also Sharma decl. ¶ 9.) 

Finally, any confusion about whether the LLC needed to respond to service effectuated on its former registered agent would constitute excusable neglect.  “Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief . . . .”  (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

Plaintiff’s objections to the Sharma declaration are sustained as to #5 (legal conclusion) and otherwise overruled.

Defendant shall give notice.