Judge: Deirdre Hill, Case: 22TRCV00385, Date: 2023-03-28 Tentative Ruling

Case Number: 22TRCV00385    Hearing Date: March 28, 2023    Dept: M

Hearing Date:                         March 28, 2023

Moving Parties:                      Plaintiff Sumitomo Mitsui Finance and Leasing Company, Limited

Responding Party:                  None

Motion to Serve Summons by Publication for Individual Defendant and on Secretary of State for Corporate Defendant

            The court considered the moving papers.

RULING

            The motion is DENIED WITHOUT PREJUDICE as to individual defendant Kim.  The motion is GRANTED as to corporate defendant OT Trucklines.  Plaintiff is to submit a proposed order in compliance with Corp. Code §1702. 

BACKGROUND

On May 12, 2022, plaintiff Sumitomo Mitsui Finance and Leasing Company, Limited filed a complaint against OT Trucklines, Inc. and Tom Pongil Kim for (1) breach of note #1, (2) possession of personal property, (3) breach of note #2, (4) breach of guaranty.

LEGAL AUTHORITY

                        Service by Publication

CCP §415.50 states:  “(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:

(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.

(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.

(b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.  If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party.  The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons.  Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.

(c) Service of a summons in this manner is deemed complete as provided in Section 6064 of the Government Code.

(d) Notwithstanding an order for publication of the summons, a summons may be served in another manner authorized by this chapter, in which event the service shall supersede any published summons.

(e) As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require that a search be conducted of public databases where access by a registered process server to residential addresses is prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles.”

Service on Secretary of State

As to service on corporation through the Secretary of State, Corp. Code §1702 states: 

“(a) If an agent for the purpose of service of process has resigned and has not been replaced or if the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process, or if no agent has been designated, and it is shown by affidavit to the satisfaction of the court that process against a domestic corporation cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in Section 415.10, subdivision (a) of Section 415.20 or subdivision (a) of Section 415.30 of the Code of Civil Procedure or upon the corporation in the manner provided in subdivision (a), (b), or (c) of Section 416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure, the court may make an order that the service be made upon the corporation by delivering by hand to the Secretary of State, or to any person employed in the Secretary of State’s office in the capacity of assistant or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing such service.  Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.”

DISCUSSION

            Plaintiff requests an order to serve the summons on individual defendant Tom Pongil Kim by publication and to serve suspended corporate defendant OT Trucklines Inc. by serving the California Secretary of State.

As to individual defendant, plaintiff shows that a cause of action exists against individual defendant Kim or that he is a necessary or proper party to the action.  Plaintiff’s counsel sets forth plaintiff’s due diligence in attempting to serve defendant.  See declaration of Kirk Rimmer and supporting exhibits.  Plaintiff, however, does not set forth the name of a newspaper of general circulation in California and which is most likely to give notice to defendant and an explanation as to why.  Although not a mandatory form, LACIV 108 sets forth the elements.  Further, the proposed order is insufficient and does not contain the required elements.  See LACIV 145.  The court also notes that there must be a separate application and order for each person or entity to be served.  Plaintiff improperly combined the motion as to individual defendant and corporate defendant.

As to serving corporate defendant, plaintiff’s counsel explains the efforts to serve the corporate defendant.  See Rimmer decl. and supporting exhibits.  The court finds that plaintiff has shown by affidavit to the satisfaction of the court that process against a domestic corporation OT Trucklines, Inc. cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in CCP §415.10, §415.20(a), or §415.30(a) or upon the corporation in the manner provided in CCP §416.10(a), (b) or (c) or §416.20(a). 

Accordingly, the motion is DENIED WITHOUT PREJUDICE as to individual defendant Kim and GRANTED as to corporate defendant OT Trucklines, Inc.