Judge: Gail Killefer, Case: 21STCV44225, Date: 2022-08-08 Tentative Ruling

Case Number: 21STCV44225    Hearing Date: August 8, 2022    Dept: 37

HEARING DATE:                 August 9, 2022   

CASE NUMBER:                  21STCV44225

CASE NAME:                        Versai Petroleum LLC, a California limited liability company v. SAS Movie Studios, LLC., et al.

MOVING PARTY:                Plaintiff, Versai Petroleum LLC

OPPOSING PARTY:             Defendant, SAS Movie Studios, LLC

TRIAL DATE:                        None

PROOF OF SERVICE:          OK

MOTION:                               Plaintiff’s Motion to Serve the Secretary of State

OPPOSITION:                       None as of August 5, 2022

REPLY:                                  No opposition filed.

TENTATIVE:        Plaintiff’s motion is granted. Plaintiff is to provide notice.  

Background

This is an action for accounting in connection with transactions between Versai Petroleum LLC (“Plaintiff”) and SAS Movie Studios, LLC (“SAS” or “Defendant”). According to Plaintiff,  services, goods, and merchandise were rendered and delivered to Defendant amounting to $82,686.62, which Defendant agreed to pay. Plaintiff alleges Defendant has failed to pay and alleges common counts for repayment.

Plaintiff’s Complaint, filed December 3, 2021, alleges three causes of action: (1) open book account; (2) account stated; and (3) reasonable value.

Plaintiff explains that after several attempts, service on Defendant has been unsuccessful.

Plaintiff now moves for leave to serve Defendant by service on the Secretary of State. The motion is unopposed.

Discussion

California Corp. Code § 2111(a) provides in relevant part:

“If the agent designated for the service of process is a natural person and cannot be found with due diligence at the address stated in the designation or if the agent is a corporation and no person can be found with due diligence to whom the delivery authorized by Section 2110 may be made for the purpose of delivery to the corporate agent…or if no agent has been designated and if no one of the officers or agents of the corporation specified in Section 2110 can be found after diligent search and it is so shown by affidavit to the satisfaction of the court, then the court may make an order that service be made by personal delivery to the Secretary of State…” 

Discussion 

Plaintiff moves the Court to grant this motion to serve Defendant SAS, a corporation, through the Secretary of State.  

Service through Secretary of State  

Plaintiff asserts that it “has with reasonable diligence attempted to personally serve the subject corporation at previously known addresses for the corporation to no avail. All addresses disclosed for the Defendant corporation from the Department of Corporations, credit reports, credit application, telephone directories, websites have been futile.” (Motion, 4.)

Plaintiff also submits a declaration from counsel, Alan L. Brodkin (“Brodkin”). Brodkin attests that service was attempted on an address found “from Plaintiff’s records,” but the process server determined that address was the location of another business instead. (Brodkin Decl. ¶¶ 3-4, Ex. A.)

Brodkin also attests that service was attempted on another address found through SAS’s website.  The process server reported, however, that “there was no one to speak to at this location because there was only a gated warehouse with no security guards or offices.” (Brodkin Decl. ¶¶ 5-6.) Brodkin attests that Plaintiffs have not been able to attain other addresses through several other methods. (Brodkin Decl. ¶ 7.)

Confusingly, Brodkin then requests “service of the Summons and Complaint by publication.” (Brodkin Decl. ¶ 8.) Counsel should be prepared to address this request at the hearing.

Here, Plaintiff has shown due diligence through sworn affidavits.  Service of process was attempted on SAS at the addresses both found online and through Plaintiff’s own records and searches (Brodkin Decl., Ex. A-B.)  Service was attempted eight times.  (Id.)  

Based on the foregoing, the Motion for Leave for Service by Secretary of State is granted.  

Conclusion

Plaintiff’s motion is granted. Plaintiff is to provide notice.