Defendant’s proof of service represents that the moving papers were personally served on 7/29/16, which was timely within the 75-day deadline prior to the hearing date. (CCP 437c (a)(2).)
However, Plaintiffs argues that personal service was not properly effected because Defendant’s courier merely left the documents outside the office of Plaintiffs’ counsel and the papers were not retrieved until the following Monday morning.
In Opposition, Plaintiffs argue that their courier arrived at 4:59 p.m. and tried to personally serve the documents, but the office of was closed early, so that they cannot be faulted for inability to complete service. Defendant also notes that it served the moving papers by email on the evening of 7/29/16, as a courtesy.
First, the court finds Plaintiffs’ testimony credible and finds that personal service of the documents was properly effected or attempted.
Second, the court finds that Plaintiffs received actual notice of the motion via the email sent by Defendant on 7/29/16.
Third, even though the POS does not reflect email service, nevertheless, the evidence before the court demonstrates that email service was legally proper and timely made. Under CRC 2.251 (b)(1)(B), if a party is represented by counsel, then whenever the party files a document electronically with the court, this is deemed to constitute consent to accept electronic service.
Accordingly, Defendant’s service by email on 7/29/16 constituted valid service on Plaintiffs. Furthermore, email service is deemed complete when sent. (CCP 1010.6 (a)(2) and (a)(4).
The Motion for Summary Judgment/Adjudication
Defendant PACIFIC GAS & ELECTRIC CO. moves for summary judgment/adjudication as to the 8th cause of action for breach of contract and the 9th cause of action for account stated, in the First Amended Complaint filed by Plaintiffs DONALD BETZ and MONICA BRILL on 6/23/15.
1) Eighth C/A-Breach of Contract
Defendant PG&E argues correctly that it never entered into any contract with Plaintiffs. This point appears to be undisputed.
PG&E also argues that the assignments on which the claims are based are invalid, so that Plaintiffs lack standing to sue PG&E. There were two such purported assignments.
a) The first Assignment Menlo Business Pk. to Progressive
Menlo Business Park LLC initially held the right to receive rebate payments from PG&E. Defendant PG&E argues that the first assignment of rebate rights from Menlo to Progressive was invalid.
The FAC at paragraph 115 alleges that Menlo assigned its PG&E rebate rights to Progressive via the Letter of Intent and the Master Services Agreements. [The term “Agreement(s)”is variously written in the singular and sometimes in the plural. See paragraphs 17, 19, and 115.]
PG&E argues that because the Master Services Agreement (“MSA”) contains an integration clause, it must be fully integrated, so parol e...