Judge: H. Jay Ford, III, Case: 24SMCV00330, Date: 2025-02-20 Tentative Ruling

Case Number: 24SMCV00330    Hearing Date: February 20, 2025    Dept: O

 Case Name:  Mulenos, et al. v. Jackson, et al.

SUBJECT:                 MOTION FOR AN ORDER AUTHORIZING SUBSTITUED SERVCE ON SECRETARY OF STATE FOR DEFENDANT PREMIUM SERVICE LIMOUSINE, INC.

MOVING PARTY:   Plaintiffs Nick Jerry Mulenos and Lauren Elizabeth Spann Mulenos

RESP. PARTY:         No Responsive Party as of 2-13-25

TENTATIVE RULING

            Plaintiffs Nick Jerry Mulenos and Lauren Elizabeth Spann Mulenos’ Motion for an Order Authorizing Substituted Service on Secretary of State for Defendant Premium Service Limousine, Inc. is DENIED, without prejudice. Plaintiffs need to provide a declaration from its processes server showing the reasonable diligence to serve Defendant’s registered service agent with reasonable diligence at Premium’s corporate address on file with the Secretary of State. In addition, Plaintiffs fail to show they are unable to serve Defendant in any other manner consistent with CCP §§ 416.10 and 416.20. Namely, Plaintiff’s fail to show reasonable diligence is locating lThus, Plaintiffs fail to satisfy both steps of Corp. Code 1702(a) for substitute service of a corporate defendant onto the Secretary of State.

REASONING

Corporations Code section 1702(a) provides: 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. (Corp. Code, § 1702, subd. (a).)

“The court order must be based upon a factual showing (by declaration) that process cannot be served with reasonable diligence upon (i) the corporation's designated agent (i.e., because the agent resigned and was not replaced or cannot be found at the designated address or if no agent was appointed); and (ii) the corporation by any other authorized method. [Corps.C.¿§¿1702(a)]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020), ¶ 4:148.) Another authorized service method for a corporation includes “delivering a copy of the summons and the complaint . . . [t]o the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.”   (Code Civ. Proc., § 416.10, subd. (a).)

“Personal service upon an officer or authorized agent is much more likely to result in timely actual notice to the corporation, and to all those interested in its affairs, of the nature and pendency of any action filed against the corporation. We do not believe the Legislature intended to require a less effective method of service upon a corporation when a more effective method is available, or to require the courts or the Secretary of State to participate in such service except as a “last resort” after a party has exhausted other authorized procedures.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 312.)

Plaintiffs makes an insufficient showing that it cannot serve Premium’s officers with reasonable diligence pursuant to CCP §§416.10(a)-(c). Plaintiff does not provide a declaration stating that after a diligent search Plaintiffs are unable to locate, or serve, Premium’s “president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.” (Code Civ Proc., § 416.10,, subd. (b); see Gibble, supra, 67 Cal.App.4th at p. 311 [“A party is under no duty to attempt substitute service of a corporation through the Secretary of State unless service cannot, with reasonable diligence, be accomplished pursuant to either section 416.10 or section 416.20. (Corp.Code, § 1702, subd. (a).)”].)

 Plaintiffs declare that a Premium shareholder, Muhammed Fahd (“Fahd”), contacted Plaintiffs on 7-29-24, and on 8-7-24 Plaintiffs requested that Fahd accept service on behalf of Premium, to which Fahd declined. (Kim Decl., ¶ 13, Ex. D.). Plaintiffs further declare that on 8-7-24 Plaintiffs mailed a notice and acknowledgment of receipt to Fahd to effectuate service but as of the motion filing date no response was received. (Id., ¶ 14, Ex. 9.)  Plaintiff does not show what efforts, if any, Plaintiff made to locate and serve Mr. Fahd, or Mehdi Marzouk as officers of Premium.

Plaintiff’s Motion for Leave to Effect Substitute Service on the Secretary of State for Defendant Premium is DENIED.